    [Senate Hearing 113-506]
    [From the U.S. Government Publishing Office]

                                                            S. Hrg. 113-506

                     S. 2670, KEEP THE PROMISE ACT OF 2014

    =======================================================================

                                    HEARING

                                   before the

                          COMMITTEE ON INDIAN AFFAIRS
                              UNITED STATES SENATE

                        ONE HUNDRED THIRTEENTH CONGRESS

                                 SECOND SESSION

                                   __________

                               SEPTEMBER 17, 2014

                                   __________

             Printed for the use of the Committee on Indian Affairs

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                          COMMITTEE ON INDIAN AFFAIRS

                         JON TESTER, Montana, Chairman
                     JOHN BARRASSO, Wyoming, Vice Chairman
    TIM JOHNSON, South Dakota            JOHN McCAIN, Arizona
    MARIA CANTWELL, Washington           LISA MURKOWSKI, Alaska
    TOM UDALL, New Mexico                JOHN HOEVEN, North Dakota
    AL FRANKEN, Minnesota                MIKE CRAPO, Idaho
    MARK BEGICH, Alaska                  DEB FISCHER, Nebraska
    BRIAN SCHATZ, Hawaii
    HEIDI HEITKAMP, North Dakota
            Mary J. Pavel, Majority Staff Director and Chief Counsel
                  Rhonda Harjo, Minority Deputy Chief Counsel

                                C O N T E N T S

                                  ----------
                                                                       Page
    Hearing held on September 17, 2014...............................     1
    Statement of Senator Barrasso....................................     2
    Statement of Senator McCain......................................     2
    Statement of Senator Tester......................................     1

                                   Witnesses

    Mendoza, Hon. Gregory, Governor, Gila River Indian Community;
      accompanied by Allison C. Binney, Partner, Akin Gump Strauss
      Hauer & Feld LLP...............................................    10
        Prepared statement...........................................    12
    Norris, Jr., Hon. Ned, Chairman, Tohono O'odham Nation...........    35
        Prepared statement...........................................    36
    Sherwood, Hon. Gary, Councilman, City of Glendale, Arizona;
      accompanied by Hon. Sammy Chavira, Councilman, City of
      Glendale, Arizona..............................................    30
        Prepared statement...........................................    32
    Washburn, Hon. Kevin, Assistant Secretary--Indian Affairs, U.S.
      Department of the Interior.....................................     3
        Prepared statement...........................................     5
    Weiers, Hon. Jerry, Mayor, City of Glendale, Arizona.............    27
        Prepared statement...........................................    29

                                    Appendix

    Beauty, Hon. Thomas, Chairman, Yavapai-Apache Nation, prepared
      statement......................................................    68
    Counts, Sherry J., Chairwoman, Hualapai Tribe, prepared statement    70
    Gaamez, Hon. Adolfo F., Mayor, City of Tolleson, Arizona,
      prepared statement.............................................    66
    Hart, Robert, Executive Vice President, Hunt Construction Group,
      prepared statement.............................................    75
    Insalaco, Hon. John, Mayor, City of Apache Junction, Arizona,
      prepared statement.............................................    65
    Kavanagh, Hon. Linda, Mayor, Town of Fountain Hills, Arizona,
      prepared statement.............................................    67
    Letters submitted for the record

                     S. 2670, KEEP THE PROMISE ACT OF 2014

                                  ----------

                         WEDNESDAY, SEPTEMBER 17, 2014

                                           U.S. Senate,
                                   Committee on Indian Affairs,
                                                        Washington, DC.
        The Committee met, pursuant to notice, at 2:15 p.m. in room
    628, Dirksen Senate Office Building, Hon. Jon Tester,
    Chairman of the Committee, presiding.

                 OPENING STATEMENT OF HON. JON TESTER,
                       U.S. SENATOR FROM MONTANA

        The Chairman. The Committee will come to order.
        Today we are holding a hearing at the request of Arizona
    Senators McCain and Senator Flake on S. 2670. The bill would
    address an issue specific to Arizona, but one that could have
    broader implications for this Committee. It will affect the
    role of Congress with regard to gaming compacts between tribes
    and States.
        The Indian Gaming Regulatory Act affirmed the authority of
    tribes to conduct gaming on the reservations. It specifically
    required States and tribes to negotiate gaming compacts. The
    Act further requires the Department of Interior to approve or
    disapprove these compacts.
        The Act provided no further role for Congress in this
    process. I think most of the members of the Committee would
    agree that is a good thing.
        The State of Arizona and the tribes within the State
    entered into a compact, which was voted on and passed through a
    statewide vote in 2002. Now, however, the tribes within the
    State and some municipalities disagree on what the vote
    approved. Senator McCain was highly involved in the drafting
    and the passage of both the Indian Gaming Regulatory Act and
    the Gila Bend Indian Reservation Lands Replacement Act. These
    acts formed the basis of the issue that S. 2670 would address.
        We heard witness testimony on this issue earlier this year.
    And now we have called the stakeholders back to discuss the
    specifics of this legislation. We have also invited the
    Administration to get their perspective. Welcome, Kevin.
        Overall, this Committee wants to ensure that any action
    taken on this specific issue doesn't have broader impacts for
    tribes across the Country.
        Senator Barrasso, do you have an opening statement?

                   STATEMENT OF HON. JOHN BARRASSO,
                       U.S. SENATOR FROM WYOMING

        Senator Barrasso. Thank you, Mr. Chairman. In the interest
    of time, I will keep the statement brief. We will consider S.
    2670, the Keep the Promise Act of 2014, introduced by Senators
    McCain and Flake. The complexity of issues involved in this
    issue should be fully examined by the Committee.
        I appreciate my colleague Senator McCain's leadership on
    the matter. I want to welcome the witnesses to the hearing
    today and look forward to the testimony. Thank you, Mr.
    Chairman.
        The Chairman. Senator McCain.

                    STATEMENT OF HON. JOHN McCAIN,
                       U.S. SENATOR FROM ARIZONA

        Senator McCain. First of all, Mr. Chairman, in this busy
    last week, I want to thank you for allowing time for this
    hearing. I appreciate it more than I can tell you. This is a
    really huge issue in my State, particularly in the Phoenix
    metropolitan area.
        I was, with the late Senator Dan Inouye, heavily involved
    for many months as we put together the Indian Gaming Regulatory
    Act. We received witness after witness, particularly from
    various States that had large Native American communities, that
    said, look, we are all for Indian gaming. But we don't want it
    on land that is not contiguous to the Indian reservations. They
    said, we want it to be fair to Native Americans, but we also
    want it to be fair to the citizens of non-Indian Country that
    they can be assured that Indian gaming casinos won't show up in
    the middle of their communities.
        I can assure you, and I can assure the witness, it was
    never the intent of Senator Inouye and I, through weeks and
    months of hearings, to have air-dropped, no matter what
    rationale you are using for it, because of some settlement, to
    have reservations that have non-contiguous Indian gaming air-
    dropped in the center of a metropolitan city without at least
    the people of that area being allowed to vote on it, at least.
        But the fact is, it was never the intent of the law, and
    what you are about to do, Mr. Washburn, is to violate the
    intent of the law. Quite often around here we hear about
    legislation and people talk about the intent of Congress. I am
    telling you the intent of Congress, because it was called the
    Inouye-McCain Act. And it was a great Act. In light of the
    Cabazon decision, it was mandatory that the United States
    Congress act.
        I am proud of that Act, and I am proud of the benefit that
    it has accrued to Indian Country. I am proud that there has
    been revenue sharing between, as there is in our State of
    Arizona, between the gaming tribes and the State of Arizona and
    the contribution they have made. I never contemplated air-
    dropping in the middle of Glendale, no matter what the
    rationale was for, an Indian gaming operation.
        So I want to make it clear, Mr. Chairman, what the intent
    of the law was. Because I was one of the two authors.
        I thank you, Mr. Chairman.
        The Chairman. Thank you, Senator McCain and Senator
    Barrasso, for your comments.
        Now I want to call up our first witness, Mr. Kevin
    Washburn, the Assistant Secretary for Indian Affairs at the
    Department of Interior. Kevin, you have been with us many
    times, we always look forward to hearing the Administration's
    thoughts on these issues. The Committee knows you are busy. So
    we will try to get through with your portion of the testimony
    as soon as possible. We will have some questions.
        We appreciate your time. Thank you for being here today.
    You may proceed.

              STATEMENT OF HON. KEVIN WASHBURN, ASSISTANT
           SECRETARY--INDIAN AFFAIRS, U.S. DEPARTMENT OF THE
                                INTERIOR

        Mr. Washburn. Thank you, Mr. Chairman. And thank you, Mr.
    Vice Chairman and Senator McCain. Thank you for having me here
    today.
        Maybe I shouldn't be thanking you. This is a difficult
    issue and I find myself nervous today, and I guess it's because
    I never like to disappoint my friends. There are no more
    passionate tribal leaders in the Country that I know of that
    than Greg Mendoza and Diane Enos. They are probably here in the
    room. And yet, we find ourselves being asked to, being forced
    to provide our perspective on this bill.
        I have to tell you that I am not really happy to be here,
    but when pushed, I will tell you what I think about this bill.
    I believe that the Tohono O'odham Nation has an expectation of
    land in Maricopa County or in Pinal or Pima County, and they
    have had that expectation for nearly 30 years now, based on the
    Gila Bend Act.
        And they came by that expectation righteously. We assured
    them that we wouldn't flood their lands in the San Lucy
    District back in 1960 when we started working on a dam. And we
    proceeded to do just that. We flooded those lands. And they
    came to Congress and looked for a settlement, given the fact
    that their expectations didn't come out a they should have with
    regard to the dam.
        So Congress enacted the Gila Bend Act and promised them
    land, up to 10,000 acres in three counties in Arizona, central
    Arizona, so long as it was not within an incorporated
    municipality. And that was their expectation and that is the
    Gila Bend Act. Congress was well aware of gaming at the time
    the Gila Bend Act was passed. It didn't include any
    prohibitions on Indian gaming. Indian gaming was a robust
    industry by that time and the very next year it ended up in the
    U.S. Supreme Court in the Cabazon case. Cases don't just arrive
    in the Supreme Court, they go through multiple levels before
    they reach the Supreme Court.
        So this was, again, well known to Congress. There had
    already been hearings before Congress on Indian gaming and it
    was well known at the time the Gila Bend Act was passed.
        Then shortly thereafter, in 1988, Congress enacted the
    Indian Gaming Regulatory Act, that Senator McCain spoke
    eloquently about. This Indian Gaming Regulatory Act did not
    mention Tohono O'odham and it indeed included a specific
    provision that allows an exception to the prohibition on gaming
    after the enactment of IGRA, on lands acquired after that time,
    included a specific provision that essentially speaks right to
    the situation involving the Gila Band parcel.
        So Tohono O'odham had an expectation, a reasonable
    expectation that this land, which was certainly thought to be
    for economic development, that they would be able to game on
    this land.
        I think a more practical perspective is also in order. I
    hear over and over that gaming distributes resources unfairly
    because it creates tribes that are haves and tribes that are
    have nots. Despite the popular conception, most tribes don't
    have gaming. Most tribes don't benefit in any way from gaming.
        Gaming was being strongly encouraged when the Gila Band Act
    was passed. Ronald Reagan's Department of the Interior was
    strongly trying to get tribes to increase gaming, because that
    would increase self-sufficiency for tribes. And when Ronald
    Reagan signed the Indian Gaming Regulatory Act in 1988, he said
    he was supporting the statute because he wanted tribes to be
    more financially independent, more self-sufficient.
        And I come over to this Committee all the time and I get
    beat up because some members of this Committee think that the
    Administration is not asking for enough money from the
    taxpayers for Indian tribes. And maybe we aren't. But this
    action by Tohono O'odham to try to open up this casino is their
    effort to provide for their own people. And it is clearly
    allowed by existing law. Certainly that issue has been
    litigated over and over. That is what Judge Campbell, a
    Republican appointee, found when he looked at this issue.
        Let me add, too, that when gaming began in the Valley of
    the Sun, the population of the Phoenix metropolitan area was in
    a neighborhood of 2 million people. Today the metro area
    exceeds 4.3 million people. Surely there is enough room in this
    vast market for another tribe to benefit from gaming,
    especially an impoverished tribe. Last I checked, despite the
    recession and everything else that has been going on, Phoenix
    is still one of the fastest-growing cities in the Country.
    Again, surely in the fastest-growing cities, there is an
    opportunity for a growing gaming market, and opportunity for
    one more tribe to benefit from this vast market.
        The promise referenced in the title of S. 2670 is kind of
    ironic. It is not one that is known to me, and it certainly is
    not a Federal promise. The Federal promise was to take land
    into trust for Tohono O'odham anywhere in Pima, Pinal or
    Maricopa Counties, so long as it was not within an already-
    incorporated area of a municipality. In my mind, our trust
    responsibility demands that we keep our Federal promises. We
    have broken a lot of treaties and we have broken a lot of
    Federal promises to Indian people in the past. The only promise
    by the United States that is at issue here today is the one
    made in the Gila Bend Act. The only way the Federal Government
    can keep its promise to the Tohono O'odham is for this
    Committee to reject this bill.
        The Tohono O'odham property near Glendale presents an
    opportunity for another Indian tribe to share the wealth and
    open a new part of this gaming market. In the tight fiscal
    environment, that kind of economic development should be an
    imperative. Opening this facility would help make President
    Ronald Reagan's dream come true of using gaming to lift tribes
    out of poverty and help make them more self-sufficient.
        I will stand for your questions. Thank you, Chairman.
        [The prepared statement of Mr. Washburn follows:]

    Prepared Statement of Hon. Kevin Washburn, Assistant Secretary--Indian
                    Affairs, U.S. Department of the Interior
        Good afternoon, Chairman Tester, Vice-Chairman Barrasso, and
    Members of the Committee. My name is Kevin Washburn. I am the Assistant
    Secretary for Indian Affairs at the Department of the Interior
    (Department). I am here today to provide the Department's testimony on
    S. 2670, the Keep the Promise Act of 2014, which is a bill that if
    enacted would prohibit Class II and Class III gaming activities on
    lands, within a defined ``Phoenix metropolitan area,'' acquired in
    trust by the Secretary of the Interior for the benefit of an Indian
    tribe after April 9, 2013, and until January 1, 2027.
        S. 2670 does not specifically identify a tribe or amend a
    particular law, but because of the subject matter of the bill, the
    Department concludes that this bill has a similar effect as a bill
    introduced in the 112th Congress involving the Tohono O'odham Nation
    (Nation) and the Nation's 53.54 acre parcel in Maricopa County,
    Arizona, which the Department has acquired in trust for the Nation
    pursuant to the Gila Bend Indian Reservation Lands Replacement Act
    (Public Law 99-503) (Gila Bend Act).
        Because S. 2670 would amend the Gila Bend Act in a manner that
    significantly undermines the promises made by the United States in the
    Gila Bend settlement, the Department opposes S. 2670.
    Gila Bend Indian Reservation Lands Replacement Act
        The Nation is a federally recognized tribe located in southern and
    central Arizona. It has approximately 30,000 enrolled members, and has
    one of the largest tribal land bases in the country.
        The San Lucy District is a political subdivision of the Nation. It
    was created by Executive Order in 1882 and originally encompassed
    22,400 acres of land. In 1960, the U.S. Army Corps of Engineers (Corps)
    completed construction of the Painted Rock Dam on the Gila River. Prior
    to construction, the Bureau of Indian Affairs (BIA) and the Corps
    assured the Nation that flooding would not impair agricultural use of
    lands within the San Lucy District.
        Despite these assurances, construction of the dam resulted in
    continuous flooding of nearly 9,880 acres of land within the San Lucy
    District, rendering them unusable for economic development purposes.
    Included among the destruction was a 750-acre farm that had previously
    provided tribal revenues. The loss of these lands forced a number of
    the Nation's citizens to crowd onto a 40-acre parcel of land.
        Congress first moved to remedy the plight of the Nation's San Lucy
    District in 1982, when it directed the Secretary of the Interior to
    study the flooding and identify replacement lands within a 100-mile
    radius. After attempts to find replacement lands failed, Senators Barry
    Goldwater and Dennis DeConcini, along with then-Congressmen John McCain
    and Morris K. Udall, sponsored legislation to resolve the situation. In
    1986, Congress enacted the Gila Bend Act to redress the flooding and
    loss of the Nation's lands.
        The Gila Bend Act authorized the Nation to purchase private lands
    as replacement reservation lands and directed the Secretary of the
    Interior to take up to 9,880 acres of unincorporated land in Pima,
    Pinal, or Maricopa Counties into trust for the Nation, subject to
    certain other requirements. In addition, Congress mandated that the
    land ``shall be deemed to be a Federal Indian Reservation for all
    purposes.'' In the accompanying 1987 agreement between the federal
    government and the Nation, the Nation gave up its right and title to
    9,880 acres of land and approximately 36,000 acre-feet of federal
    reserved water rights.
        Eventually, the Nation purchased a 53.54 acre parcel in Maricopa
    County, Arizona, and requested that the Secretary acquire the land in
    trust pursuant to the Gila Bend Act. On July 23, 2010, Assistant
    Secretary Echo Hawk issued a letter to Ned Norris, Jr., Chairman of the
    Tohono O'odham Nation, stating that the Nation's request for the trust
    acquisition of this parcel satisfied the legal requirements of the Gila
    Bend Act and that the Department was obligated to, and therefore would,
    acquire the land in trust pursuant to Congressional mandate. This
    decision was remanded to the Department by the United States Court of
    Appeals for the Ninth Circuit for further consideration of the meaning
    of section 6(d) of the Act. On July 3, 2014, I made a final agency
    determination on behalf of the Department to acquire the parcel in
    trust for the Nation. The land was acquired in trust--as required by
    law--on July 7, 2014.
    S. 2670
        S. 2670, the ``Keep the Promise Act'' would prohibit Class II and
    III gaming on any lands taken into trust for an Indian Tribe by the
    Secretary of the Interior, if those lands are within the ``Phoenix
    metropolitan area,'' as defined in Section 3 of S. 2670. The
    prohibition of Class II and Class III gaming on such lands taken into
    trust for an Indian Tribe would retroactively begin April 9, 2013, and
    expire on January 1, 2027. S. 2670 would negatively impact the Nation's
    ``all purposes'' use of selected lands under the Gila Bend Act by
    limiting the Nation's ability to conduct Class II and Class III gaming
    on such selected lands.
        Congress was clear when it originally enacted the Gila Bend Act in
    1986, in which it stated that replacement lands ``shall be deemed to be
    a Federal Indian Reservation for all purposes.'' By this language,
    Congress intended that the Nation be permitted to use replacement lands
    as any other tribe would use its own reservation trust lands, namely
    ``for all purposes'' and presumably to include economic development.
        The Gila Bend Act was intended to remedy damage to the Nation's
    lands caused by flooding from the construction of the Painted Rock Dam.
    The United States and the Nation agreed to the terms of the Gila Bend
    Act, which included restrictions on where and how the Nation could
    acquire replacement lands. S. 2670 would specifically impact the
    Nation's Gila Bend Act by imposing additional restrictions beyond those
    agreed upon by the United States and the Nation 25 years ago. The
    Department cannot support legislation that specifically impacts an
    agreement so long after the fact.
        While the purpose of S. 2670 would be to restrict the Nation from
    conducting gaming on the 53.54 acre parcel in Maricopa County, Arizona,
    the effect of S. 2670 is even broader. It would seem to reach most or
    all of the remaining selectable lands under the Gila Bend Act.
        S. 2670 would also alter established law that prohibits gaming,
    authorized under the Indian Gaming Regulatory Act (IGRA), on lands
    acquired by the Secretary into trust for the benefit of an Indian tribe
    after October 17, 1988, except in certain circumstances. The effect of
    this legislation would be to add a tribe-specific and area-specific
    limitation to IGRA.
        Finally, the bill would unilaterally amend Arizona's tribal gaming
    compacts without the mutual consent of the Tribes and the State. The
    language of the bill specifically and unilaterally modifies substantive
    terms such as Section 3(j)(1) (location of gaming facilities on Indian
    lands), Section 17(c) (Amendments) and Section 25 (entire agreement of
    the parties) in all of the Tribal-State Compacts in Arizona, which were
    duly negotiated by the State and the Tribal Nations.
        In the compacts, the parties themselves eliminated reliance on any
    statements or promises made during negotiations, unless they were
    included within the four corners of the compact. Section 25 of the
    compacts provides that this is ``the entire agreement of the parties
    with respect to the matters covered by this compact and no other
    statement, or promise made by any party, officer, or agent of any party
    shall be valid or binding.'' In other words, the promise to which the
    title of S. 2670 refers seems to be illusory.
        We are further concerned that the provisions of S. 2670 may result
    in competitive restrictions favoring one tribe over another. This is a
    longstanding concern in the area of Indian gaming. In our April 25,
    2003, letters to Governor Doyle of Wisconsin and Chairman Frank of the
    Forest County Potawatomi Community, we refused to affirmatively approve
    a proposed Class III gaming compact because we found a provision
    excluding other Indian gaming ``anathema to basic notions of fairness
    in competition and inconsistent with the goals of IGRA.'' Letter from
    Acting Assistant Secretary--Indian Affairs, Aurene Martin to Chairman,
    Forest County Potawatomi Community, Harold ``Gus'' Frank (Apr. 25,
    2003). This legislation would negate and/or amend Section 3(j)(1) of
    the Nation's Tribal-State compact, without the Tribe or the State
    participating in the amendment and without regard to the agreement
    reached between two sovereigns.
    Historical Context with the Gila Bend Act and Indian Gaming
        It is important to understand the historical context of gaming at
    the time of passage of the Gila Bend Act. When Congress enacted the
    Gila Bend Act in 1986, it was well aware of the Indian gaming industry.
    By that time, Indian gaming was already quite controversial. Indian
    gaming legislation was introduced in Congress as early as 1984 and
    1985. A good deal of litigation over Indian gaming had occurred in the
    late 1970s and early 1980s. Indeed, cases had been fully litigated
    through federal appeals courts with reported decisions by 1981. Federal
    litigation was proceeding in California, Florida, Minnesota and
    Wisconsin in the early 1980s. In sum, gaming was spreading like
    wildfire across the country in the early and mid-1980s.
        Fostering Indian gaming was a public policy choice by the Reagan
    Administration. President Reagan's Department of the Interior strongly
    encouraged such development in hopes that gaming would help poor tribes
    become more self-sufficient.
        And though it was aware of gaming, Congress said nothing in the
    Gila Bend Act that would prohibit Tohono O'odham from gaming on lands
    acquired under the Act. Covered acquisitions, which were mandatory
    under that Act, included lands in Maricopa County.
        After enacting the Gila Bend Act, Congress held hearings that
    ultimately led to enactment of IGRA in 1988. In IGRA, Congress
    generally prohibited gaming on lands acquired after its enactment. But
    Congress specifically included an exception for lands taken in trust as
    part of a land settlement like those to be acquired under the Gila Bend
    Act.
        Given this course of action by Congress, the Nation would have had
    reason to believe that the United States had promised it land on which
    it could engage in gaming in compensation for the lands flooded by the
    Corps in the San Lucy District. And given that the Gila Bend Act and
    IGRA are laws enacted through a very public process in Congress, none
    of these expectations developed in secret.
        In the Gila Bend Act, Congress mandated the taking of land into
    trust for the Nation to make a mandatory acquisition of land in
    Maricopa, Pima or Pinal County, as long as the land was not ``within
    the corporate limits of any city or town.'' It is the Department's view
    that, the promise made in the Gila Bend Act would be broken by S.
    2670.''
        For these reasons, the Department opposes S. 2670. This concludes
    my prepared statement. I am happy to answer any questions the Committee
    may have.

        The Chairman. Thank you, Assistant Secretary Washburn. I
    know that Senator McCain has a conflict with his Foreign
    Affairs, I believe, so I will let him go ahead of me.
        Senator McCain. Well, Mr. Washburn, you talk about
    impoverished tribes. Does that Tohono O'odham fit into that
    category, since they already have three casinos?
        Mr. Washburn. Yes, Senator, despite all that----
        Senator McCain. In other words, you just falsely gave the
    Committee the impression as if the Tohono O'odham was an
    impoverished tribe without Indian gaming. They have three
    casinos, right? Isn't that true?
        Mr. Washburn. I didn't mean to give the impression that
    they are not a gaming tribe, they indeed already are. But I
    will tell you that their gaming is in Tucson and Phoenix is a
    much larger market than Tucson.
        Senator McCain. Well, they are certainly not impoverished,
    Mr. Washburn.
        Mr. Washburn, you said that that was the intent that Indian
    gaming not be located in incorporated areas, right?
        Mr. Washburn. Yes.
        Senator McCain. Isn't that kind of technical, because it is
    in the middle of the city of Glendale? Isn't it sort of a
    technical--everything around it is incorporated. It is not out
    in the desert.
        Mr. Washburn. Senator, it was your bill. You wrote the
    language. We are just applying it.
        Senator McCain. You know something, Mr. Washburn, that is a
    pretty smart ass answer. And the fact is, I am telling you what
    the intent was, okay? Now, we wrote the bill, and we wrote it
    so that there would not be exactly what has happened now. And
    if you want to interpret that way, fine. You can interpret how
    you want to. I interpret it as not ever intending to have a
    gaming operation in the middle of an incorporated area without
    the permission of the people, not only in Glendale, because as
    you said, this is a large metropolitan area, but the people of
    the metropolitan area. They should have a say in this.
        You are not giving them a say in this. The city of Glendale
    has been split on this in various ways.
        So you are saying that one, that it is for impoverished
    tribes. Clearly, by any measurement, this tribe is not
    impoverished. Second of all, you say it was not the intent of
    the Act to be in incorporated areas. It is surrounded by
    incorporated areas, Mr. Washburn. And I can tell you what the
    intent is, and I believe that also it is your interpretation of
    the law versus my interpretation of the law.
        And I really appreciate your concern for impoverished
    tribes. I have that same concern. The Tohono O'odham tribe
    isn't one of those. It isn't one of those. They are doing very
    well with the three casinos that they have already. And there
    are established casinos within the Phoenix metropolitan area
    that this is going to impact. That is why the other tribes are
    against such a move, which would then impact their gaming
    operations and revenue. Has that been taken into consideration
    in your decision, the impact on other Native American tribal
    gaming?
        Mr. Washburn. As I said, Senator, this is a rapidly-growing
    market. It continues to be one of the fastest-growing cities in
    the Country. We certainly have a trust responsibility to all
    the tribes.
        Senator McCain. So it is up to you to decide whether an
    area is fast-growing or not, as to whether, what guides your
    decision? Mr. Washburn, that has nothing to do with the law.
        Mr. Washburn. It is my responsibility to follow the law and
    follow what Congress said. And what you said was, outside of
    any municipality, incorporated municipality, anywhere in
    Maricopa County. And that is what we read. And that is
    relatively clear. That is what we determined and that is what
    the courts have upheld. We believe that they are a tribe that
    has significant burdens. They are one of the largest tribes in
    the Country, they have roughly 40,000 members and they have a
    lot of land to try to take care of with a modest revenue
    source.
        Senator McCain. Three casinos is a modest revenue source.
        Mr. Washburn. Given their burdens, yes, Senator. This is
    not a tribe with 30 people or 300 people, this is a very, very
    large tribe with a lot of responsibilities. I can assure you,
    they can use more revenues.
        Senator McCain. I am sure every tribe in America can use
    more revenue.
        So you are basing your decision as to what, are you saying
    they are impoverished? Are you saying they are impoverished?
    Because you said, you are referring to impoverished tribes. Are
    you saying that this tribe is impoverished?
        Mr. Washburn. I want gaming to benefit all tribes. But yes,
    I am willing to live with the fact that Tohono O'odham is an
    impoverished tribe. It has a large number of members and many
    of them are living in very terrible conditions.
        Senator McCain. And are you aware of the gaming revenues
    from the three casinos?
        Mr. Washburn. I have heard there are gaming revenues from
    three casinos. I don't have them in front of me as I sit here.
        Senator McCain. Do you know what they are, roughly?
        Mr. Washburn. No.
        Senator McCain. So it doesn't matter to you what, obviously
    since you don't know, it doesn't matter to you what it is. So
    you are making a judgment as to the economic condition of the
    tribe without knowing what their revenues are. That is really,
    really good, Mr. Washburn. I don't have any more questions for
    this witness.
        The Chairman. Assistant Secretary Washburn, the Department
    approves Class III tribal-State gaming compacts. I believe that
    the Department has approved the latest compacts between the
    State of Arizona and the Arizona tribes. Do you know if the
    compacts currently in effect have any type of limitation of
    facilities in the Phoenix area?
        Mr. Washburn. They do not have any limitations as to the
    number of facilities in the Phoenix area.
        The Chairman. You mention in your testimony the Department
    does not support the bill, as it would undermine promises made
    by the United States to the Tohono O'odham Nation and the Gila
    Band Indian Reservation Land Replacement Act. I want you to
    describe, if this bill were enacted, could you describe the
    policy implications that it might have on future negotiations
    and settlements between tribes in the United States?
        Mr. Washburn. Well, the potential is that we will have
    tribes feeling this is the same stuff, a different day, that we
    are just continuing in the mode of breaking treaties and
    breaking promises to tribes. That is a tough situation to be
    in, because I had hoped we were past all that and that we were
    working to live up to our promises to Indian tribes going
    forward. So this would significantly undermine the promise that
    we made to Tohono O'odham in the Gila Bend Act and I think that
    would cause tribes to have great pause in settling with the
    United States Government if it doesn't live up to its promises.
        The Chairman. So you believe that the Gila Bend Act gave
    the Tohono O'odham the authority?
        Mr. Washburn. I believe it gave them the opportunity to
    take land into trust anywhere in Pima, Pinal and Maricopa
    Counties and with some caveats, one of the caveats being it
    couldn't be already incorporated land. So they went out and
    bought land that was not incorporated, but was in Maricopa
    County. And if we add requirements to that, we have changed the
    promise, we have changed the deal that we struck with Tohono
    O'odham.
        Senator McCain. Did that act refer, anywhere in it, any
    reference to gaming?
        Mr. Washburn. It had no prohibition on gaming whatsoever.
        Senator McCain. Did it have any reference to gaming?
        Mr. Washburn. It said that lands could be used for all
    purposes.
        Senator McCain. So it made no reference to gaming itself.
        Mr. Washburn. All purposes encompass gaming.
        Senator McCain. I see.
        The Chairman. Assistant Secretary Washburn, some of the
    witnesses' testimony that we are going to hear today talks
    about possible violations in the Arizona tribal compacts,
    whether by the Tohono O'odham project itself or by possible
    repercussions if the Tohono O'odham project is allowed to
    proceed. What role does the Department play in instances where
    the tribe or a State violates provisions of the compact?
        Mr. Washburn. Well, first of all, we approve those
    compacts. So we stamped approval on those compacts. And those
    compacts would, the provisions would be violated by this
    statute and would change, again, the terms of those compacts.
    So there are potential provisions for violations of gaming
    compacts. I am not sure what the steps would be for the United
    States to take for those violations.
        One of the compact's terms was that this compact, the final
    agreement for the parties on these issues, and introducing new
    terms after everybody agreed that they have agreed on all the
    terms, is definitely a change in the promise.
        The Chairman. Okay. Do you have any more questions, Senator
    McCain?
        Senator McCain. No, thank you, Mr. Chairman.
        The Chairman. Thanks, Secretary Washburn. We appreciate
    your taking time out of your schedule to be here today.
        We will give the staff a moment to reset the witness table.
    The witnesses can come up at this time.
        I want to welcome our second panel up to the witness table.
    We will first hear from Governor Gregory Mendoza, the Gila
    River Pima Maricopa Community. Then we will turn it over to
    Mayor Jerry Weiers, City of Glendale. Welcome back, Mayor.
        We will then hear from Gary Sherwood, Glendale city
    councilman. And finally, we are going to hear from Chairman Ned
    Norris of the Tohono O'odham Nation, and we welcome you back as
    well, Mr. Chairman.
        Thank you all for being here today. Governor Mendoza, we
    shall start with you. Go ahead.

    STATEMENT OF HON. GREGORY MENDOZA, GOVERNOR, GILA RIVER INDIAN
    COMMUNITY; ACCOMPANIED BY ALLISON C. BINNEY, PARTNER, AKIN GUMP
                        STRAUSS HAUER & FELD LLP

        Mr. Mendoza. Good afternoon, Chairman Tester, members of
    the Committee. Thank you for holding this hearing and inviting
    me to speak in support of the Keep the Promise Act.
        I want to start by saying that it pains me to advocate
    against a sister tribe. But this is not a dispute with the
    O'odham people, only with the leadership of the Tohono O'odham
    Nation, whose actions jeopardize every tribe in Arizona.
    Contrary to what Tohono O'odham claims, this is not a fight
    about market share. It is about preventing fraud upon tribes,
    local governments and voters.
        Tohono O'odham likes to talk about the promises made
    between their tribe and the Federal Government in 1986. But
    this bill is about protecting the promise made to my community
    and to other tribal governments. Our tribes relied upon the
    actions of the Tohono O'odham when we gave up our rights in
    2002. While we agree that Tohono O'odham should get replacement
    lands under the 1986 law, we also strongly believe that Tohono
    O'odham must abide by the promise and commitments they made to
    us.
        In 2002, Arizona tribes had to get approval of our compact
    from the voters. In order to get this approval we promised the
    voters that the number of casinos in the Phoenix metro area
    would not increase until 2027. At the same time that Tohono
    O'odham helped us win voter approval, they also were secretly
    plotting to build a casino in Phoenix. That casino would be
    located right across the street from a high school, and it is
    near homes and churches. This is exactly what we promised the
    voters would not happen. Tribes like mine gave up rights to
    build additional casinos. We also agreed to limits on the
    number of gaming machines allocated to us.
        We did this in order to get voter approval and to preserve
    the tribal monopoly on gaming in Arizona. And we ensured that
    rural tribes benefit from gaming.
        Tohono O'odham doesn't deny making promises, nor do they
    deny knowing that their sister tribes gave up rights in order
    to limit the number of casinos in Phoenix. They don't deny that
    the compact negotiations would have been vastly different if
    everyone knew of their plans. Instead, they say they are
    winning in the courts. There remains a dispute because they
    refuse to waive their sovereign immunity for claims of fraud.
        We do not want to attack another tribe's immunity. That is
    why the bill merely provides for a temporary restriction on
    additional casinos in the Phoenix area until the end of the
    existing compacts. At that point, all parties can come together
    at the table and bargain in good faith. Hopefully my community
    will be able to regain the rights we gave away.
        The Gila River Indian Community will weather this storm.
    But most tribes in Arizona are not as fortunate. Rural tribes
    will suffer the most from Tohono O'odham's fraud. There are six
    rural tribes that utilize gaming compacts to lease gaming
    machines to urban tribes. Leasing these machines allows them to
    benefit from gaming, even though their markets can't support a
    casino.
        Each year, these tribes receive more than $30 million to
    provide basic services to their members. And the structure of
    the gaming compacts create markets for a few rural tribes to
    operate small casinos. If gaming happens at Glendale, the State
    legislature will likely eliminate that tribal monopoly. If this
    happens, urban tribes will have no reason to lease gaming
    machines from rural tribes. Patrons will stop traveling to
    reservations for gaming and instead visit non-tribal casinos
    located in cities.
        We have come to Congress because you are the only entity
    that can provide swift action to preserve the promises made in
    2002. Interior indicates it cannot resolve this matter because
    Congress, through the 1986 law, mandates them to take the land
    into trust for Tohono O'odham. This bill does not set that
    precedent. It is common for Congress to pass bills that limit
    tribal gaming. In this Congress alone, two bills have been
    enacted placing land into trust for a tribe, but prohibiting
    gaming on those lands. The bill merely restricts gaming on the
    lands until 2027, but does not eliminate the uses of the land.
    There are a number of non-gaming activities that Tohono O'odham
    could conduct.
        For all of these reasons, I ask that you pass this bill.
    Thank you.
        [The prepared statement of Mr. Mendoza follows:]

    Prepared Statement of Hon. Gregory Mendoza, Governor, Gila River Indian
                                   Community
        Chairman Tester, Vice Chairman Barrasso and members of the
    Committee, I want to thank you for inviting me to testify on behalf of
    the Gila River Indian Community (Community) regarding S. 2670, the Keep
    the Promise Act of 2014. Swift enactment of this overwhelmingly
    bipartisan legislation is critical to protecting the existing system of
    tribal gaming in Arizona. That system is now under threat because the
    Tohono O'odham Nation (Tohono O'odham or Tribe) has broken ground on a
    casino project in the Phoenix metropolitan area that would unilaterally
    destroy the commitment made byArizona tribes that there would be no
    additional casinos in that area until 2027.
        In July, the Committee heard extensive testimony about why the Keep
    the Promise Act is necessary to protect the future of Indian gaming in
    Arizona. There was testimony about how Tohono O'odham used negotiations
    for the current tribal-state compact in Arizona to advance a secret
    plot to open a casino in Phoenix while telling the State officials and
    Arizona voters that there would be no more casinos in that very area.
    The Committee also heard how Arizona's desire to limit gaming in urban
    areas was exploited by Tohono O'odham, which recognized that tribes
    like the Community agreed not to open new casinos in Phoenix. Now, we
    also know that Tohono O'odham kept their plans secret for almost a
    decade while the State, local cities, and Arizona tribes relied and
    invested millions of dollars based upon the commitment of no additional
    casinos in the Phoenix metropolitan area.
        By prohibiting gaming on tribal lands acquired in trust status
    after April 9, 2013 within the Phoenix metropolitan area until January
    1, 2027, this bill maintains the commitments and promises that were
    relied upon during negotiations of the current gaming compacts for the
    duration of those compacts, which begin to expire in late 2026. It must
    be clearly understood that the bill does not prohibit Indian gaming on
    the lands beyond the sunset date of January 1, 2027 and does not
    prevent lands from being taken into trust status for Indian tribes. At
    its core, S. 2670 is a bill that would protect the agreed upon system
    of Indian gaming in Arizona and would prevent fraud from being
    committed upon tribes, local governments, and voters. Tohono O'odham
    has been trying to open a casino far outside its aboriginal territory
    and within the Phoenix metropolitan area since 2002 when it promised
    the State, voters, and Arizona tribes that there would be no additional
    casinos in this area. The promise is important because the voters of
    Arizona authorized a system of gaming in 2002 when the tribes
    essentially obtained a legal monopoly on gaming in the State, a
    monopoly that has benefited all Indian tribes in the State, gaming and
    non-gaming. But in return, the voters wanted to set a hard cap of seven
    casinos that would be in the Phoenix metropolitan and no more.
    Additionally, the voters wanted certainty about the potential
    proliferation of gaming, and thought that they had achieved that
    certainty by limiting gaming to Indian tribes on Indian reservations as
    they existed at the time of their vote in 2002.
        To be clear, no one is trying to prevent Tohono O'odham from
    acquiring replacement lands pursuant to the 1986 Gila Bend Indian
    Reservation Lands Replacement Act (``Gila Bend Act''), Pub. L. 99-503.
    But, we do believe that such replacement lands should be within the
    aboriginal territory of Tohono O'odham and that the Tribe should not be
    able to utilize the 1986 law to violate the commitments and promises
    relied upon during the negotiations of the existing gaming compacts in
    Arizona.
        Contrary to the testimony of Tohono O'odham, S. 2670 would not
    create liability for the United States or constitute an unlawful taking
    that would trigger constitutional protection because it is well within
    Congress' plenary power over Indian affairs to defend and protect the
    promises that tribes publicly make to obtain gaming. There is no Fifth
    Amendment right for tribes to violate their own promises on which other
    tribes and the State have relied. The Fifth Amendment does not curtail
    Congress's authority to protect the compacting process from broken
    promises and misrepresentations. To suggest otherwise is disingenuous.
    S. 2670 was narrowly crafted to preserve promises made during the
    negotiation of the existing tribal-state compact and to clarify them in
    a manner that is consistent with federal precedent related to the
    regulation of gaming on Indian lands.
        We have come to Congress because you are the only entity that can
    provide justice in this situation. Congress allowed tribes to be sued
    for violations of gaming compacts once they are signed. Unfortunately,
    Congress did not anticipate situations like this, where a tribe commits
    fraud during compact negotiations. Further, the Interior Department
    indicates that they cannot resolve this matter because Congress,
    through the 1986 law, mandates them to take the Phoenix area land into
    trust for Tohono O'odham.
        We wish we did not have to come to Congress to address this matter,
    but we are here because you are our only option.
    The Keep The Promise Act Protects All Arizona Tribes
        The policy objective of the Keep the Promise Act is simple, to
    preserve the existing model tribal-state compact that all Arizona
    tribes agreed to abide by and game under. Arizona's model compact is
    unique because it struck a delicate balance between the competing
    interests of the Governor, who wanted to stop the spread of gaming in
    cities, and Tribes, who wanted tribal exclusivity for gaming. Under the
    model compact the Governor agreed to tribes' exclusive right to conduct
    casino gaming provided certain conditions were met. These conditions
    include: (1) overall limits on the number of gaming devices and
    casinos; (2) a maximum number of gaming devices per casino; (3)
    specific limits on the number of casinos located in or near Phoenix and
    Tucson; (4) revenue-sharing arrangements between rural tribes with no
    casinos and tribes with casinos in urban markets; and (5) revenue-
    sharing arrangements between the State and Arizona tribes.
        Importantly, in return for rural tribes agreeing to limits on
    gaming in the Phoenix and Tucson metropolitan areas, and for giving up
    an opportunity to seek off-reservation gaming near these lucrative
    markets, they are able to share in gaming revenues generated in these
    markets through machine transfer agreements (i.e., lease their machine
    rights to urban tribes). As a result, the rural non-gaming tribes
    receive revenues from gaming tribes located in the metropolitan
    markets. There are six tribes in Arizona that currently benefit under
    machine transfer agreements: Havasupai, Hualapai, Kaibab-Paiute,
    Navajo, San Juan Southern Paiute, and Zuni. As tribes that struggle
    with severely limited economic opportunities, these funds are essential
    to many of the rural tribes. Each year, these tribes receive a combined
    amount that exceeds $30 million to provide basic services to their
    tribal members. These tribes rely on stable machine transfer revenue
    and stand to be hurt the most by Tohono O'odham's proposal.
        Although the impact of Tohono O'odham's proposed casino will
    reverberate throughout Arizona, it will be felt most severely by these
    rural tribes who depend on revenue from transfer agreements that are
    only possible because through the model compact. These rural tribes are
    concerned about the Tohono O'odham's casino because of another feature
    of the model compact that is commonly referred to as a ``poison pill.''
    This provision essentially states that if the tribal gaming monopoly is
    disrupted in any way--i.e., if Arizona expands gaming to private non-
    Indians interest--tribes may then operate casinos free of any
    conditions imposed upon them by the model compact. If non-tribal gaming
    is authorized, then the existing caps on facilities and machines will
    disappear and there will be no requirement or reason for urban tribes
    to lease machines from, and share revenue with, rural tribes.
        Rural tribes will not be the only tribes hurt if non-tribal gaming
    is authorized in Arizona. Small market gaming tribes will also suffer
    because gaming consumers would stop traveling to reservations for
    gaming, and would instead visit non-tribal casinos, which will likely
    be located in cities.
        Commercial gaming interests have been clamoring to expand into
    Arizona since the 1990's and have long targeted tribal exclusivity as
    an argument in favor of their efforts. As Glendale Mayor Jerry Weirs
    told this Committee in July, ``if gaming happens in Glendale, there
    will be a strong effort in the Arizona legislature to authorize non-
    Indian gaming in the State.'' It isn't just a position held by Mayor
    Weiers. There have been numerous bills introduced in the Arizona
    legislature in recent years to authorize non-tribal gaming, as well as
    a steady stream of editorials and articles calling for an end to tribal
    gaming exclusivity. The bottom line is that tribes, Arizona citizens,
    and commercial gaming interests view Tohono O'odham's plan as breaking
    all Arizona tribes' solemn promise not to open new casinos in the
    Phoenix metropolitan area under the current model compact. The opening
    of the Glendale casino will destroy Arizona tribes' credibility among
    voters and lawmakers, and will be used to justify the end of tribal
    exclusivity.
        The Community will be negatively impacted if the Tohono O'odham
    opens up one or more casinos in the Phoenix-metro area. If the Tohono
    O'odham is successful we will have to make budget cuts that will impact
    our general welfare programs and employment opportunities for our
    members. These cuts will be especially severe if non-tribal gaming is
    also authorized. However, the Community will be able to weather the
    storm far more easily than rural non-gaming tribes who rely most on the
    current revenue sharing system.
        In contrast to all other Arizona tribes, Tohono O'odham has a
    strong incentive to end the conditions under the model compact. Tohono
    O'odham maintains that it can operate all of its casinos in Phoenix
    metropolitan area. If the Tribe successfully establishes one casino in
    the Phoenix area and subsequently moves the rest of its existing
    casinos to the area, it would not want market parity. Instead, it would
    want to create large mega-casinos to dominate the market. Tohono
    O'odham can accomplish market domination if the limitations in the
    model compact regarding the number of gaming machines in each casino go
    away.
        Given Tohono O'odham's established gaming presence and its ability
    to unilaterally cherry-pick strategic locations in the area, it would
    have an overwhelming head start in any race to establish new gaming
    facilities in the area should gaming expand to include non-Indian
    interests. Thus, it would be entirely in Tohono O'odham's interest to
    have the ``poison pill'' provision triggered and eliminate restrictions
    on tribal gaming altogether. Tohono O'odham would then be the only
    tribe in Arizona able to compete with non-Indian gaming interests on
    equal footing.
        Because Arizona law does not allow two-part determinations, \1\ all
    other tribes would have difficulty competing in this new market and
    would be forced to attempt to relocate to the urban markets under
    dubious legal theories or face massive losses in revenue. With Tohono
    O'odham dominating the Phoenix market, while at the same time facing
    competition from non-Indian gaming interests, all other Arizona tribes
    would either suffer drastic cuts to tribal member services, or could be
    forced to shutter their gaming facilities altogether. The latter is
    especially true for the outlying small market tribes. Gaming
    competition among tribes would not increase; rather, Tohono O'odham
    would become the sole winner among Arizona tribes.
    ---------------------------------------------------------------------------
        \1\T3ASee Ariz. Rev. Stat. Ann.  5-601(C) (prohibiting the
    Governor from concurring in any determination by the Secretary that
    gaming may be permitted on Indian lands within Arizona under 25 U.S.C.
     2719(b)(1)(A)); see also 25 U.S.C.  2719(b)(1)(A) (permitting gaming
    on Indian lands acquired in trust after October 17, 1988 where the
    Secretary consents and the Governor of the state in which the Indian
    lands are located subsequently concurs that gaming may take places on
    the lands in question).
    ---------------------------------------------------------------------------
    The Keep The Promise Act Would Not Create Negative Precedent
        The Keep the Promise Act does not jeopardize tribal sovereignty nor
    create negative precedent for Indian Country. Congress routinely
    creates laws that restrict the ability of tribes to conduct gaming
    through several types of legislation. The Department often supports
    these bills even though they include the explicit limitations on an
    affected tribe's right to game. Accordingly, any arguments that S. 2670
    constitutes dangerous precedent are inconsistent with common
    Congressional practice and are without merit.
        Congress has enacted these clarifications through statutes intended
    to shed light on earlier legislation and settlements, prohibitions
    included in land-into-trust transfers, and restrictions included in
    federal recognition and restoration legislation. In 2011, Congress
    enacted the Indian Pueblo Cultural Center Clarification Act, which
    amended Public Law 95-232. The clarification repealed language in an
    early statute and provided that lands acquired in trust for certain
    Indian Pueblos would be treated as Indian Country, except for the
    purpose of gaming under the Indian Gaming Regulatory Act (IGRA), 25
    U.S.C.  2701 et seq. Three years earlier, in 2008, Congress clarified
    the Mashantucket Pequot Settlement Act to provide for the extension of
    leases of the Tribe's land but provided that ``No entity may conduct
    any gaming activity (within the meaning of section 4 of the Indian
    Gaming Regulatory Act (25 U.S.C. 2703)) pursuant to a claim of inherent
    authority or any Federal law . . . . on any land that is leased with an
    option to renew the lease in accordance with this section.''). In 1978,
    Congress settled the Narragansett Tribe's land claims through the Rhode
    Island Indian Claims Settlement Act, which did not include a provision
    regarding gaming. 25 U.S.C.  1701 et seq. Congress subsequently
    amended the Rhode Island Claims Settlement Act in 1996 to unilaterally
    clarify that lands acquired by the Narragansett pursuant to the
    Settlement Act ``shall not be treated as Indian lands'' for the purpose
    of gaming under IGRA. 25 U.S.C.  1708(b). The practice of amending
    existing agreements has persisted until today.
        Congress has also passed numerous tribe-specific and area-specific
    laws to restrict gaming in recent years. In 2012, Congress enacted
    Public Law 112-97 to provide lands that would ensure flood and tsunami
    protection for the Quileute Indian Tribe. The law transferred lands to
    the tribe in trust but stipulated that the tribe may not use the land
    for any commercial purposes and may not build any commercial or
    permanent structures on the land. This prohibition has the effect of
    preventing the tribe from exercising its right to game on the land. Two
    years earlier, Congress passed the Hoh Indian Tribe Safe Homelands Act,
    Public Law 111-323, which transferred federal and non-federal land to
    the Hoh Indian Tribe. The legislation specifically provided that
    ``[t]he Tribe may not conduct on any land taken into trust pursuant to
    this Act any gaming activities--(1) as a matter of claimed inherent
    authority; or (2) under any Federal law . . . . ''
        This continues to be a consistent practice of Congress and is one
    that the Department has vocally supported in the past. This Congress
    alone, there have been two laws enacted to place lands in trust on
    behalf of Tribes while simultaneously prohibiting the benefitting
    Tribes from using the lands for gaming. Public Law 113-127, which
    placed Federal land in trust for the benefit of the Shingle Springs
    Band of Miwok Indians stipulates that ``class II and class III gaming
    under the Indian Gaming Regulatory Act (25 U.S.C.  2701 et seq.) shall
    not be permitted at any time on the land taken into trust.'' The
    Department testified in support of the bill despite its prohibition on
    gaming. Separately, Public Law 113-134, the Pascua Yaqui Tribe Trust
    Land Transfer Act, placed Federal land into trust for the benefit of
    the Pascua Yaqui Tribe while stipulating that ``The Tribe may not
    conduct gaming activities on the lands held in trust under this Act, as
    a matter of claimed inherent authority, or under the authority of any
    federal law . . . . ''
        These examples demonstrate that it is appropriate and routine for
    Congress to enact legislation to clarify earlier statutes and limit
    gaming pursuant to IGRA in appropriate circumstances. Given the near
    universal opposition to the proposed Glendale casino, the Keep the
    Promise Act will not create harmful precedent and is in line with
    Congress's role in legislating in Indian Country to accurately reflect
    congressional intent. Rather, bad precedent would be created by
    allowing Tohono O'odham to operate a casino that puts all other Arizona
    tribes at risk.
    The Keep the Promise Act Does Not Create Liability for the United
            States
        Tohono O'odham contends that S. 2670 would subject the United
    States to a Fifth Amendment Takings Claim. This objection is premised
    on notion that when Arizona tribes obtained IGRA compacts by promising
    not to attempt to use those compacts to locate any additional casinos
    in the Phoenix area, the Fifth Amendment somehow protects their right
    to violate that very promise. This could not be further from the truth.
    It should go without saying that Congress does not abrogate gaming
    compacts or affect a Fifth Amendment taking when it defends and
    protects the promises tribes made publicly to obtain the compacts.
    Neither gaming compacts nor the Gila Bend Act include an inherent right
    to profit from States' and tribes' detrimental reliance on a tribe's
    promises during the compacting process. Simply put, there is no Fifth
    Amendment right for tribes to commit fraud while violating their own
    promises. The Fifth Amendment does not limit Congress' authority to
    preserve the integrity of IGRA's compact process from illegality.
        Nonetheless, Tohono O'odham argues that S. 2670 will give rise to a
    successful takings claim against the United States, a claim that the
    Assistant Secretary was not willing to embrace during his response to
    the Committee's questions during the July 2014 hearing. Such a claim
    would argue that S. 2670 constituted ``regulatory taking'' by depriving
    TON of an economic use of its land and interfering with an investment-
    backed expectation. As a threshold matter, the Fifth Amendment's Taking
    Clause generally applies to federal actions that affect Indian property
    rights formally recognized by Congress. See generally 1-5 Cohen's
    Handbook of Federal Indian Law  5.04[2][c]. However, the Supreme
    Court's opinion in Penn Central Transportation Co. v. City of New York,
    438 U.S. 104 (1978), established a multifactor analysis for courts to
    consider when weighing a regulatory taking claim. The Penn Central test
    has spawned different categories of regulatory takings but it is highly
    unlikely that TON could successfully argue that S. 2670 fits into any
    one of these.
        Penn Central requires an ad hoc factual inquiry based on three
    factors: (1) ```the character of the governmental action'''; (2)
    ``[t]he economic impact of the regulation on the claimant''; and (3)
    ``the extent to which the regulation has interfered with distinct
    investment-backed expectations.'' Lingle v. Chevron U.S.A. Inc., 544
    U.S. 538-539 (alteration in original (quoting Penn Central, 438 U.S. at
    124). Mindful of Justice Holmes's oft-cited admonition that
    ``[g]overnment hardly could go on if to some extent values incident to
    property could not be diminished without paying for every such change
    in the general law[,]'' Mahon, 260 U.S. at 413, courts historically
    have applied Penn Central's inquiry stringently.
        First, the character of the governmental action that would give
    rise to TON's taking claim would likely weigh against an
    unconstitutional taking. S. 2670 was narrowly crafted so TON may still
    use the Glendale Parcel for commercial gain or otherwise, even if it
    cannot operate Class II or III gaming activities on the property. The
    proximity of the Glendale Parcel to the Arizona Cardinals stadium will
    allow Tohono O'odham to pursue a wide variety of lucrative economic
    development activities that will bring significant revenue. Viewed from
    that perspective, the legislation is more akin to a zoning regulation
    restricting a particular land use, which tends to withstand a Takings
    Clause challenge. See generally Village of Euclid v. Ambler Realty Co.,
    272 U.S. 365 (1926).
        Moreover, here Congress is effectively regulating gambling in the
    public interest. The Supreme Court has long recognized the regulation
    of gambling to be a traditional exercise of police power. See Lawton v.
    Steele, 152 U.S. 133, 136 (1894). And under a much older Takings Clause
    regime, it has held that ```acts done in the proper exercise of
    governmental powers, and not directly encroaching upon private
    property, though these consequences may impair its use,' do not
    constitute a taking within the meaning of the constitutional provision,
    or entitle the owner of such property to compensation from the state or
    its agents, or give him any right of action.'' Mugler v. Kansas, 123
    U.S. 623 (1887) (discussing prohibition of alcohol). It is of great
    consequence for purposes of this analysis that Congress has already
    placed substantial limits on Indian gaming unless done in accordance
    with the IGRA. If allowing gaming pursuant only to IGRA's strictures is
    Congress's baseline approach, then S. 2670 is consistent with that
    public policy insofar as it closes a loophole in IGRA that is only
    available to TON through its bad faith negotiations with other parties.
        Second, the economic impact of the regulation would clearly be
    significant but Supreme Court decisions have ``long established that
    mere diminution in the value of property, however serious, is
    insufficient to demonstrate a taking.'' Concrete Pipe & Products of
    Cal., Inc. v. Construction Laborers Pension Trust for S. Cal., 508 U.S.
    602, 645 (1993). Indeed, the Supreme Court has noted that a diminution
    in property value as high as 75 percent or even 92.5 percent may not be
    a sufficiently serious impact. Id. at 645. Because the Glendale Parcel
    can be put to a range of other profitable uses, a court may well give
    less weight to the impact of precluding Class II and III gaming
    activities. It is also relevant to this analysis that S. 2670 is
    temporally limited so any economic impact on Tohono O'odham's ability
    to use the Glendale Parcel for gaming would terminate on January 1,
    2027 when all Arizona tribal-state compacts will need to be re-
    negotiated. Further, S. 2670 would not prevent Tohono O'odham from
    developing a fourth casino anywhere outside of the Phoenix metropolitan
    area. These points illustrate how the Keep the Promise Act was drafted
    to avoid a permanent impairment of any economic development
    opportunities, including gaming, so any action challenging the Keep the
    Promises Act would likely fail to demonstrate a credible Takings Claim.
        Third, it is unlikely that TON will be able to establish that its
    investment-backed expectations rise above a ``unilateral expectation or
    an abstract need,'' which would be critical to establishing a Takings
    Claim. Ruckelshaus v. Monsanto Co., 467 U.S. 986, 1005 (1984) (citation
    and quotation marks omitted). Several courts have recognized that
    gambling is a highly regulated industry and that it is difficult to
    hold reasonable investment-backed expectations in light of that
    regulation. See, e.g., Holliday Amusement Co. of Charleston, Inc. v.
    South Carolina, 493 F.3d 404, 411 (4th Cir. 2007) (holding no taking of
    slot machine property where South Carolina banned video poker after 25
    years of allowing it because ``Plaintiff's participation in a
    traditionally regulated industry greatly diminishes the weight of his
    alleged investment-backed expectations''); Hawkeye Commodity
    Promotions, Inc. v. Vilsack, 486 F.3d 430, 442 (8th Cir. 2007) (holding
    multi-million ``devastating economic impact'' of ban on TouchPlay
    machines to be ``discounted'' by ``heavily regulated nature of gambling
    in Iowa). Tohono O'odham was well aware of the inherent riskiness of
    gaming ventures when they purchased the Glendale Parcel. This is likely
    why the parcel was purchased and kept secret until a more favorable
    political environment improved the likelihood of success for their
    scheme. The attenuated timeline of this project epitomizes the highly
    speculative nature of gaming projects.
        Again, it would be difficult for TON to argue that IGRA and the
    2002 Compact guarantee a right to game on the Glendale Parcel. The Gila
    Bend Act and its corresponding settlement agreement did not give Tohono
    O'odham a right to violate its own subsequent promises in the
    compacting process. The Gila Bend Act is silent with respect to gaming
    and it was also enacted two years before IGRA. Further, no one can make
    the credible argument that by regulating Las Vegas style gaming and
    making it subject to the Tribal-State compacting process, that IGRA
    constituted a breach of contract or a taking of federally recognized
    tribes' inherent right to game on tribal lands. Congress could preclude
    Indian gaming altogether and has already enacted IGRA to establish that
    tribal gaming is permissible only ``if the gaming activity is not
    specifically prohibited by Federal law,'' 25 U.S.C.  2701(5), and it
    contains several restrictions as to the location of gaming facilitates.
    All of that at least arguably puts tribes on notice that Congress may
    at any time enact additional restrictions on tribal gaming. Moreover,
    the 2002 Compact--which was negotiated between the Tribes and the State
    of Arizona--could not estop Congress from altering IGRA. Cf. Sioux
    Nation, 448 U.S. at 410-411 (affirming Congress's power to abrogate
    treaties with tribes). Simply put, ``[t]he pendulum of politics swings
    periodically between restriction and permission in such matters [as
    gambling], and prudent investors understand the risk.'' Holliday
    Amusement, 493 F.3d at 411. Nothing in the Gila Bend Act bestowed any
    absolute right to locate a casino on Indian lands in Phoenix--much less
    did it enshrine a right to violate promises Tohono O'odham and other
    tribes later made in pursuit of IGRA compacts with Arizona in 1993 and
    2002. IGRA, not the Gila Bend Act, defines the boundaries of Indian
    gaming authority, and just as Congress enacted limitations on such
    gaming in IGRA, it can legislatively protect the IGRA compacting
    process from the corrosive and profoundly destabilizing effect of
    unkept promises made to obtain a compact.
        In sum, there are considerable arguments against the viability of a
    Takings Clause challenge to S. 2670 that stem from the narrow scope of
    the legislation, arguments that the Assistant Secretary seemed to
    tacitly acknowledge when he responded to the Committee's inquiries on
    the issue. The limited nature of the government's restriction, the
    continued economic viability of the Glendale Parcel, and the highly
    regulated nature of gaming present significant barriers to a regulatory
    taking claim.
    S. 2670 Would Not Impact Pending Litigation
        Tohono O'odham likes to tell Members of Congress to let the ongoing
    litigation run its course before taking any action on this matter.
    However, the Tribe fails to tell those very same Members that the
    courts are unable to adjudicate the essential claims in this matter
    because Tohono O'odham refuses to waive its sovereign immunity. Thus,
    S. 2670 would not interfere with ongoing litigation and Congress is the
    only entity that can resolve this issue.
        Two lawsuits were brought after Tohono O'odham announced its
    intention to acquire lands into trust for an off-reservation casino in
    2009. One lawsuit challenges the Tribe's ability to have the lands
    taken into trust status as an Indian reservation, and that lawsuit is
    near completion. The other lawsuit alleges that Tohono O'odham
    wrongfully induced the relevant parties to enter into the compact and
    is violating the compact. While the courts have been able to review
    certain claims with respect to the express terms contained within the
    gaming compact, the courts have been thwarted by Tohono O'odham from
    addressing the claims of fraud, misrepresentation, or promissory
    estoppel because the Tribe asserted tribal sovereign immunity with
    respect to those claims. Tribal sovereign immunity is a legal doctrine
    providing that Indian tribes are immune from judicial proceedings
    without their consent or Congressional waiver. Congress waived tribes'
    sovereign immunity in IGRA with respect to claims for violations of a
    compact once the compact is signed, but IGRA does not waive a tribe's
    sovereign immunity for actions that occurred prior to the signing of
    the compact. Since Tohono O'odham refused to waive its sovereign
    immunity with respect to the claims of fraud, misrepresentation and
    promissory estoppel, which occurred prior to the signing of the
    compact, the court was unable to consider those claims. It would be odd
    for a gaming compact to waive tribal sovereign immunity in anticipation
    of acts of fraud and misrepresentation, or wrongful inducement. Sadly,
    the 2027 Arizona compacts may require that very thing solely as a
    result of the actions of Tohono O'odham here.
        It is these court dismissed claims that S. 2670 seeks to remedy.
    And, in its May 7, 2013 order the Federal District Court for the
    District of Arizona found that although evidence appears to support the
    promissory estoppel claim against Tohono O'odham, the court had to
    dismiss the claim also because of the Tribe's sovereign immunity. \2\
    Promissory estoppel is where one party makes a promise and a second
    party acts in reasonable and detrimental reliance on that promise. In
    that instance, a court would normally be able to enforce the promise
    that was relied on regardless of whether it was expressly stated in a
    contract. That's exactly what happened in this matter. Tohono O'odham
    made representations that there would be no additional casinos in the
    Phoenix area and the State and other tribes and voters relied on the
    Tribe's representations in deciding to give up rights to additional
    casinos and gaming machines, approve Proposition 202, and sign the
    compacts approved by the voters. And, because Tohono O'odham's false
    promises preceded execution of its compact with the State of Arizona,
    the conduct fell outside of IGRA's waiver of sovereign immunity.
    Neither IGRA nor any other law concerning governmental conduct would
    necessarily anticipate fraudulent conduct by responsibly governments,
    tribal or otherwise. Tohono O'odham has exploited that fundamental
    assumption and shielded itself from judicial review of its conduct by
    refusing to waive sovereign immunity.
    ---------------------------------------------------------------------------
        \2\ State of Ariz. v. Tohono O'odham Nation,, slip op. at 26-27 (D.
    Ariz. May 7, 2013).
    ---------------------------------------------------------------------------
        Tohono O'odham argues that it is unreasonable to expect it to waive
    its sovereign immunity for what its Chairman referred to as frivolous
    claims. The court only found that it could not reach the claims because
    of sovereign immunity, not that they were without merit. Indeed, the
    court suggested otherwise when it stated that evidence appeared to
    support the claims against Tohono O'odham, notwithstanding its immunity
    from unconsented suit. To the contrary, it is precisely because those
    claims would expose the wrongful conduct that Tohono O'odham must use
    sovereign immunity as a shield. And, while it is common for tribes to
    grant limited waivers of sovereign immunity, particularly for
    commercial reasons such as casinos, it is hard to imagine waivers that
    would have expressly envisioned duplicitous conduct grounded in fraud
    as part of a gaming compact; perhaps the State will require such
    waivers of all Arizona Indian Tribes in the 2027 compacts in order to
    safeguard against future conduct of this sort by Tohono O'odham. In the
    end, waiving sovereign immunity is a political decision, and one that
    we respect. However, it is disingenuous for Tohono O'odham to refuse to
    waive its sovereign immunity in court in order to prevent resolution of
    certain claims and then argue that Congress should not resolve these
    same claims because they are being addressed in litigation.
        S. 2670 comes at a critical time for tribal sovereignty and Indian
    gaming. In May, the Supreme Court issued its opinion in Michigan v. Bay
    Mills, 134 S.Ct. 2024 (2014). The Court, in a 5 to 4 decision, ruled
    that the Bay Mills Tribe could assert tribal sovereign immunity and
    avoid claims filed by the State of Michigan that sought to close what
    it claimed was an illegal off-reservation in Vanderbilt, Michigan. The
    Court stated at five different points in its opinion that Congress and
    not courts are the proper venue to resolve issues where sovereign
    immunity has frustrated efforts to bring justice to parties that cannot
    maintain suit against tribes. Perhaps most disturbingly, Justice
    Scalia, who voted in favor of several Supreme Court decisions which
    cemented the doctrine of tribal sovereign immunity, explicitly stated
    in his dissenting opinion in Bay Mills that those votes in support of
    sovereign immunity were wrong and that he ``would overrule'' tribal
    sovereign immunity. Although Bay Mills was certainly a limited victory
    for Indian Country, it also put a spotlight on the fragile state of
    tribal sovereign immunity and the fact that the Supreme Court is one
    vote from limiting its application or eliminating it altogether. Bay
    Mills illustrates that off-reservation projects such as those proposed
    by the Bay Mills Indian Community and Tohono O'odham manipulated the
    process for obtaining federal approval of tribal gaming projects and
    have used sovereign immunity as a shield to protect fraudulent
    activity. From this perspective, S. 2670 is good policy for Indian
    Country because it will address a narrow set of facts that exploit
    sovereign immunity and will establish that conniving plots such as that
    pursued by Tohono O'odham will not be sanctioned.
        There remain certain issues that are pending in litigation, but
    those issues are not related to the claims of fraud, misrepresentation
    and promissory estoppel. S. 2670 is intended to not impact any pending
    court case, but rather to address the issues that the court has
    determined that it is unable to resolve. More, the Department has also
    indicated that it cannot resolve the claims of fraud, misrepresentation
    and promissory estoppel, and that it cannot resolve this matter because
    Congress, through the 1986 law, mandates them to take the Phoenix area
    land into trust for Tohono O'odham. Thus, Congress is the only entity
    capable of resolving this issue and addresses issues that courts are
    unable to review.
        For all these reasons, I respectfully ask that you pass this bill.

                             Supplemental Testimony

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

        The Chairman. Thank you, Governor.
        Mayor Weiers? And I would ask, try to keep it to give
    minutes, because Senator McCain has another meeting to get to,
    and I want to get to him for questions.

       STATEMENT OF HON. JERRY WEIERS, MAYOR, CITY OF GLENDALE,
                                ARIZONA

        Mr. Weiers. I will do the best I can, sir, thank you very
    much.
        Good afternoon, Chairman Tester, Vice Chairman Barrasso and
    members of the Committee. My name is Jerry Weiers, and I am the
    mayor of Glendale, a city of 232,000, and the 72nd largest city
    in the Country. Before becoming mayor, I served eight years in
    the Arizona legislature.
        I am here today to discuss my personal views on a casino
    proposed to be built in my city. I am required to state that my
    views today do not represent the majority of the body of the
    council. My views are not the official position of the council.
        Like Senator McCain, I supported Arizona Proposition 202,
    the 2002 ballot initiative, which gave tribes the exclusive
    right to conduct gaming. One key aspect of that campaign was
    the clear promise repeatedly made to voters by tribes and State
    officials that there would be no additional casinos in the
    Phoenix metro area. When Governor Hall concluded compact
    negotiations in 2002 with the 17 tribes, he publicly announced
    that under the compact, that there would be ``no additional
    casinos in the metropolitan Phoenix area.''
        Now, here is a voter pamphlet from the 2002 initiative
    campaign that was widely distributed by the 17 tribes. The
    pamphlet told voters that under the compact, ``there will be no
    facilities in Phoenix.'' If you look at page 6, which I have
    highlighted here, major funding for this pamphlet was provided
    by the Tohono O'odham Nation, who I will respectfully refer to
    as the TO.
        Understandably, the public was blindsided when Tohono
    O'odham announced in January of 2009 it was going to open a Las
    Vegas style casino on the 54 acre parcel within our city. At
    that time I was serving in the Arizona legislature, and I met
    with Tohono O'odham Chairman Norris, and I expressed my grave
    concerns about gambling within our city. The council
    immediately passed a resolution opposing the casino, because it
    would harm our residents and their way of life.
        Recently the city council voted four to three to repeal the
    2009 resolution opposing that casino. This was done only after
    the Interior Department had already decided to create a casino
    reservation on that parcel. We had no real choice; we could
    continue to fight and hope for action from this body or give
    up. It is frustrating to be a city of our size and have no
    voice on gambling pushed by a tribal government that is more
    than 100 miles away. The public has no right to object to
    gambling because of the narrow exception in the 1988 Indian
    Gaming Regulatory Act that Tohono O'odham is using that gives
    the Interior absolutely no authority to stop gambling, even if
    it knows adverse impacts to nearby neighborhoods, churches and
    the public school across the street.
        Since the Interior has no authority to stop gambling, it
    has no reason to ask the public for comments or investigate
    adverse impacts. This is a polar opposite to the two-part
    exception in IGRA, which is typically used for off-reservation
    casinos. It requires that the Interior prepare for an
    environmental impact statement and investigate in great detail
    adverse impacts that a casino may cause.
        What is more, for gambling to be allowed, the Secretary
    must determine on the record that the casino ``would not be
    detrimental to the surrounding community.'' And most
    importantly, the State's governor has the legal right to veto
    any casino project, regardless of the Secretary's decision.
        But in our case, the public has no say. The State
    legislature has no say. Our governor has no say, and the
    Interior has no authority to stop it. For us, this means that
    the largest tribal casino in the history of the State may
    operate on a 54-acre island in the middle of the Phoenix metro
    area without anyone investigating and addressing the adverse
    environmental and social impacts it will cause, and without any
    Federal, State or local official deciding that it can safely
    operate in the public's interest.
        What is more, my city may not be the last. Our sister
    cities realize that unless Congress acts, they may be next.
    Under the 1986 Gila Bend Act, Tohono O'odham claims that it can
    create a new reservation on land on more than 6,000 acres. It
    also claimed the right to operate a total of four new casinos
    in the Phoenix metro area. If Congress does not act, the entire
    Phoenix metropolitan area must be prepared for more off-
    reservation casinos.
        That is why many mayors and city council members have
    signed a letter asking that Congress enact the Keep the Promise
    Act. As a former State legislator, I know that if gambling
    happens in Glendale, there will be a strong effort in the State
    legislature to authorize non-Indian gaming in all of Arizona.
    And that will have a devastating effect on all the tribes.
        I urge this Committee to move the Keep the Promise Act. The
    bill is about preserving the promises made to tribes by tribes
    to voters, protecting Phoenix metro cities from having unwanted
    gambling within their borders. Thank you, Chairman Tester. I
    will be happy to answer any questions.
        [The prepared statement of Mayor Weiers follows:]

       Prepared Statement of Hon. Jerry Weiers, Mayor, City of Glendale,
                                    Arizona

        Good afternoon Chairman Tester, Vice Chairman Barrasso and
    members of the Committee. My name is Jerry Weiers. I am the
    Mayor of Glendale, a city of 232,000 and the 72nd largest city
    in the country. Before becoming Mayor, I served eight years in
    the Arizona Legislature.
        I am here today to discuss my personal views on a
    controversial tribal casino proposed for my City. As Mayor, I
    am required to state that my views today do not represent the
    majority of the body of the Council and my views are not the
    official position of the Council.
        Like Senator McCain, I supported Arizona Proposition 202,
    the 2002 ballot initiative which gave tribes the exclusive
    right to conduct gaming. One key aspect of the initiative
    campaign was the clear promise, repeatedly made to voters by
    Tribes and State officials, that there would be ``no additional
    casinos in the Phoenix-metro area.''
        When Arizona Governor Hull concluded compact negotiations
    with the 17 Tribes, she publicly announced that under the
    compact, there would be--and I quote--''no additional casinos
    in the Phoenix metropolitan area.''
        [HOLD UP pamphlet] Here is a voter pamphlet from the 2002
    initiative campaign that was widely distributed by the 17
    Tribes. The pamphlet told voters that under the compact--and I
    quote--''there will be no additional facilities in Phoenix.''
    Page 6 of the pamphlet says that major funding for it was
    provided by the Tohono O'odham Nation, who I will respectfully
    refer to as TO.
        Understandably, the public was blindsided when TO announced
    in January 2009 that it was going to open a Las Vegas-style
    casino on a 54-acre parcel within our City. No one gave us any
    warning. No one asked for our opinion. At that time, I was
    serving in the Arizona Legislature and I met with TO Chairman
    Norris and expressed my grave concerns about gambling within
    our City.
        The City Council immediately passed a resolution opposing
    the casino because it would harm our residents and their way of
    life. During the following five years, the City was involved in
    two lawsuits to stop the casino, at enormous financial cost.
        Recently the City Council voted 4-3 to repeal our 2009
    resolution opposing the casino. But this was done only AFTER
    the Interior Department had already decided to create a casino
    reservation on the parcel. We had no real choice--continue to
    fight and hope for action from this body, or give up. It is
    frustrating to be a city of our size and have no voice on
    gambling pushed by a tribal government more than a hundred
    miles away.
        The public has no right to object to gambling because the
    narrow exception in the 1988 Indian Gaming Regulatory Act that
    TO is using gives Interior absolutely no authority to stop
    gambling, even if it knows of adverse impacts to nearby
    neighborhoods, churches, and the 2,000-student public high
    school across the street, and even though Arizona Governor Jan
    Brewer formally objected. Since Interior has no authority to
    stop the gambling, there is no reason to ask the public for
    comments or investigate adverse impacts.
        This is polar opposite to the ``two-part'' exception in
    IGRA, which is typically used for off-reservation casinos such
    as this. It requires that Interior prepare an Environmental
    Impact Statement and investigate in great detail adverse
    impacts that a casino may cause. What's more, for gambling to
    be allowed, the Secretary must determine on the record that the
    casino, and I quote, ``would not be detrimental to the
    surrounding community.'' And, most importantly, the State's
    governor has the legal right to veto any casino project
    regardless of the Secretary's decision.
        But in our case, the public has no say, the State
    Legislature has no say, the Governor has no say, and Interior
    has no authority to stop it, despite adverse impacts. For us,
    this means that the largest tribal casino in the history of the
    State may operate on a 54-acre island in the middle of the
    Phoenix-metro area without anyone investigating and addressing
    the adverse environmental and social impacts it will cause, and
    without any federal, state or local official deciding that it
    can safely operate in the public interest.
        What's more my City may not be the last. Our sister cities
    realize that unless Congress acts, they may be next. Under the
    1986 Gila Bend Act, TO claims it can create reservation land on
    6,626 more acres. And, T.O. claims a right to operate a total
    of four new casinos in the Phoenix-metro area. If Congress does
    not act quickly, the entire Phoenix metropolitan area must be
    prepared for more off-reservation casinos. And that is why 8
    Mayors and many more City Council members have signed a letter
    asking that Congress enact the Keep the Promise Act.
        As a former State legislator, I know that if gambling
    happens in Glendale, there will be a strong effort in the
    Arizona Legislature to authorize non-Indian gambling in the
    State. And that will have a devastating effect on all Tribes.
        I urge this Committee to move the Keep the Promise Act. The
    bill is about preserving the promises made by Tribes to voters
    and protecting Phoenix-metro cities from having unwanted
    gambling within their borders.
        Thank you. I am happy to answer any questions.

        The Chairman. Thank you, Mayor Weiers. Councilman Sherwood?

    STATEMENT OF HON. GARY SHERWOOD, COUNCILMAN, CITY OF GLENDALE,
    ARIZONA; ACCOMPANIED BY HON. SAMMY CHAVIRA, COUNCILMAN, CITY OF
                           GLENDALE, ARIZONA

        Mr. Sherwood. Good afternoon, Chairman Tester and Members
    of the Senate Indian Affairs Committee. My name is Gary
    Sherwood, and I am a council member of the City of Glendale,
    Arizona.
        On behalf of Glendale, I am here today with my fellow
    council member and colleague Sammy Chavira. We are pleased to
    have been given the opportunity to present Glendale's official
    position on S. 2670, the so-called Keep the Promise Act.
        Let me be absolutely clear: the City of Glendale strongly
    opposes enactment of this legislation. The city twice has
    adopted official resolutions clearly expressing its opposition.
    And these resolutions have been provided to the Committee.
        In this opposition to S. 2670 and House Bill 1410, we have
    joined our sister cities Peoria, Tolleson and Surprise, all of
    which have long opposed this legislation. It is important to
    understand that collectively, our cities represent the vast
    majority of the population of Phoenix's West Valley.
        Our communities desperately need this economic development
    and employment opportunities which the Tohono O'odham Nation's
    casino and resort project bring to our area. In Glendale alone,
    almost 80,000 of the nearly 90,000 workers who live in Glendale
    must leave the city for their employment. In other words, 88
    percent of the wage earners who live in our community must
    travel elsewhere to work. Obviously, this job situation is a
    significant problem in our community.
        In the next 20 years, 65 percent of the growth in the
    Phoenix metropolitan area will occur in the West Valley. The
    existing casinos in the Phoenix area are overwhelming
    concentrated in the East Valley, and the West Valley resort
    will be over 20 miles away from the nearest of these existing
    casinos. There is no doubt that these successful facilities
    will continue to prosper.
        When I was first elected to the council in 2012, I knew we
    had to do our homework on a project like this. So I was stunned
    to learn that the prior Glendale administration had failed to
    make any effort to learn more about this proposed project
    before it rushed to oppose it. It was time to make decisions
    based on the facts. At the direction of my colleagues,
    Councilman Chavira, whose district actually borders the
    Nation's reservation, Councilman Ian Hugh, Councilwoman Norma
    Alvarez and myself, city staff spent months carefully examining
    every aspect of the Nation's proposed development.
        A minority of the Glendale City Council, including Mayor
    Weiers, continue to maintain their personal opposition to this
    project. But as President Reagan once said, ``Facts are
    stubborn things.'' The facts showed that we had been misled,
    not by the Nation but by the interests seeking to protect their
    overwhelming casino market share. Based on this misinformation,
    the city clearly rebuffed the Nation's good faith effort to
    forge a mutually beneficial relationship. I am proud that the
    city of Glendale has now opened a new chapter with the Nation
    and has entered into an agreement that will bring thousands of
    jobs and millions of dollars in direct benefit to the city.
        Today, the city of Glendale and the Tohono O'odham Nation
    are bound by ties of friendship. I recently had the honor of
    participating in a historic groundbreaking ceremony with
    Chairman Norris, a member of the Nation's legislative council,
    local and business leaders and hundreds of supporters.
    Construction of the project is now underway. This facility will
    be located next to our vibrant sports and entertainment
    district, an area that is represented by Council Member
    Chavira. We have talked to many business leaders in this area,
    including leaders of two professional sports teams and major
    hospitality developments, and they all support this West Valley
    project.
        I am sorry to report to the Committee that despite these
    benefits and the unequivocal views of Glendale residents who in
    poll after poll express overwhelming support for this West
    Valley resort, East Valley casino interests are again trying to
    interfere. Over the last several days, these casino interests
    have been using paid signature gatherers to mislead Glendale
    residents into signing a petition that challenges the city's
    agreement with the Nation. As has been widely reported to the
    press, these paid signature gatherers have been caught on tape
    lying to Glendale voters, suggesting that the petition is in
    favor of the West Valley resort. Thankfully, even Mayor Weiers
    has acknowledged that this dishonest publicity stunt will not
    in any way affect the city's agreement.
        I share the sentiments of a long-time Glendale business
    owner, who told me that this bill is more properly titled
    Keeping the Profits Act of 2014. For all these reasons, the
    city respectfully urges that the Federal Government should not
    interfere in our efforts to improve the lives of our citizens.
    Do not destroy this valuable partnership between the Tohono
    O'odham Nation and our community.
        Senator McCain, you did bring up a point about what this
    would do to other Phoenix area casinos. Again, a good share of
    the growth in the Valley of the Sun is going to take place in
    the West Valley over the next 20 years. Currently there are
    seven casinos that are considered in the metro Phoenix area.
    Six of them are in the far East Valley with the one being a
    little over 20 miles away. So I really don't think that is
    going to be a concern.
        Thank you for this opportunity to testify on this matter. I
    and Councilman Chavira will be pleased to answer any questions
    that you may have.
        [The prepared statement of Mr. Sherwood follows:]

    Prepared Statement of Hon. Gary Sherwood, Councilman, City of Glendale,
                                    Arizona
        Good afternoon Chairman Tester and Members of the Senate Indian
    Affairs Committee. My name is Gary Sherwood, and I am a member of the
    City Council for the City of Glendale, Arizona. On behalf of the City
    of Glendale I am here today with my fellow City Councilmember and
    colleague Sammy Chavira. We are pleased to present the City of
    Glendale's official position on S. 2670, the companion bill to H.R.
    1410. Let me be clear: despite what you have heard from our mayor, the
    City twice has adopted resolutions which unequivocally state our
    opposition to H.R. 1410, and now S. 2670.
        This dangerous and wrongheaded legislation would prevent the City
    of Glendale from benefitting from the economic development and
    desperately needed employment opportunities which already have begun to
    be generated by the Tohono O'odham Nation's planned development for its
    West Valley reservation. Make no mistake, enactment of S. 2670 will
    have a unmistakably negative impact on the people of the West Valley,
    people who were disproportionally hit by the economic downturn that
    began with the home mortgage crisis in the late 2000s. For this reason,
    Glendale joins the other major municipal governments of the West
    Valley--the cities of Peoria, Tolleson and Surprise--in opposition to
    this legislation. Together, our cities make up the overwhelming
    majority of the population of the area west of Phoenix known as the
    ``West Valley''.
        To put our views in perspective, I want to share with you that the
    West Valley's ability to provide employment opportunities to our own
    people lags badly behind the need. At a recent WESTMARC economic
    development forum it was noted that the West Valley is home to 39
    percent of the region's population (and our population is still
    growing)--but that only 24 percent of the jobs in our region are
    located West Valley. A recent studyfinds that ``51 percent of people
    who live in the region--Surprise, Peoria, Glendale and other cities--
    work outside of it. . . . Of the total, only about 35,000 of the
    109,000 people surveyed both live and work in the Northwest Valley.''
    West Valley jobs lag population growth, Arizona Republic (April 23,
    2014). This dynamic is particularly severe in Glendale. We can see from
    recent census reports that of the 88,699 workers living in Glendale,
    78,122 travel outside Glendale for their employment. ``On the Map,''
    2011 Census. These numbers are staggering, and underscore the West
    Valley's desperate need for additional economic development
    opportunities.
        The City of Glendale is the proud home of the Arizona Cardinals
    football franchise, the Phoenix Coyotes hockey team, and the spring
    training facilities for the Los Angeles Dodgers and Chicago White Sox.
    The Tohono O'odham Nation's project is located near this area, and in
    our view will directly compliment the commercial development that will
    surround it. When the Nation announced its plans for the West Valley
    Resort in 2009, it immediately reached out to the City, even though its
    land was outside Glendale's city limits. The Nation also early reached
    out to other West Valley municipalities, and began a dialogue aimed at
    forging mutually beneficial working relationships with all of us in the
    local community.
        Our partnerships with the Tohono O'odham Nation are a shining
    example of what is possible when an Indian tribe and local communities
    work together, hand in hand, to bring positive economic development to
    fruition. The last thing our communities need is federal legislation
    which would intrude on our local decisionmaking, throw our citizens out
    of work, and deprive our economies of hundreds of millions of dollars
    in economic impacts. The specter of such legislation is all the more
    disheartening to Glendale and our counterparts in other West Valley
    cities because it is so clear that its main purpose is to legislate a
    monopoly for two other tribes who operate gaming facilities in the East
    Valley way over on the other side of Phoenix. As I have heard Peoria
    Mayor Barrett say over and over again, we are tired of seeing the buses
    that come every day to the West Valley to pick up gaming patrons and
    take them back over to the other side of the Valley to spend their
    entertainment dollars outside of their own local community. In the next
    twenty years, 65 percent of the growth in the Phoenix metropolitan area
    will occur in the West Valley. For these reasons, like the City of
    Glendale, the West Valley cities of Peoria, Surprise, and Tolleson,
    each have taken formal action to oppose H.R. 1410/S. 2670, and have
    expressed that opposition in writing to the Congress. See, Testimony of
    Hon. Robert Barrett on Behalf of the City of Peoria, Arizona, Before
    the Subcommittee on Indian and Alaska Native Affairs, Committee on
    Natural Resources, U.S. House of Representatives (May 16, 2013); Letter
    of Bob Barrett, Mayor, on Behalf of the City of Peoria, Arizona, to the
    Senate Committee on Indian Affairs; July 21, 2014 Letter of Sharon
    Wolcott, Mayor, on Behalf of the City of Surprise, Arizona to the
    Senate Committee on Indian Affairs; July 17, 2014 Letter of Adolfo
    Gamez, Mayor, on Behalf of the City of Tolleson, Arizona, to the Senate
    Committee on Indian Affairs.
        Because the City of Glendale has taken longer than most of its
    sister cities to recognize the tremendous value of the West Valley
    Resort, it is important to provide a bit of background on how we got
    here. I was elected to the Glendale City Council in late 2012. At the
    time I must admit I was skeptical about the Tohono O'odham Nation's
    West Valley Resort and Casino proposal. The City had previously entered
    into several hundred-million-dollar development deals that resulted in
    the City paying substantial subsidies to private interests. As a direct
    consequence, Glendale was facing a huge budget crisis, and it seemed as
    if this project might be a drain on the City's already scarce
    resources.
        Given this history, and my experience serving for decades on
    numerous boards, commissions, and task forces in my community prior to
    my election to the City Council, I knew we had to do our homework when
    considering massive economic development projects like this one. So
    when I received my first briefings on this project as a member of the
    City Council, I was stunned to learn that the prior Glendale
    administration, which opposed the West Valley Resort, had engaged in no
    fact-finding on the project and had refused to engage in any dialogue
    with the Nation at all. This despite the fact that the Nation had made
    significant attempts to meet City officials and despite the fact that
    over a dozen administrative and court decisions had confirmed the
    Nation's right to acquire the West Valley Resort land in trust under
    its land claim settlement act and conduct gaming on the site.
        Meanwhile, the other major cities in the West Valley had long ago
    accepted the Nation's invitation for dialogue, and as noted above these
    cities have since expressed formal support for the project. So in 2013,
    the City opened a formal dialogue with the Nation on this project, and
    engaged on a nearly-six-month fact finding mission to carefully explore
    the pros and cons of this development. After receiving regular,
    detailed updates from staff over several months, the City Council
    formally voted in March 2014 to begin formal negotiations with the
    Tohono O'odham Nation in order to see whether we could reach agreement
    on the project. At that time, we also formally voted as a Council to
    oppose H.R. 1410, a position that a majority of our councilmembers
    already had expressed individually on numerous occasions.
        While a few individual members of the Glendale City council,
    including Mayor Weiers, have continued their misguided opposition to
    this project, they are in the distinct minority, both in terms of the
    City Council and the West Valley. They remain out of step with the more
    than two-thirds of Glendale residents who have consistently supported
    this project for the last five years. To put it simply, they are
    entitled to their views, but these views are their own personal views,
    and do not represent the official position of the City of Glendale. I
    fear that these individuals have turned a deaf ear to the facts and
    instead have fallen prey to the misinformation being peddled by East
    Valley casino interests seeking to protect their market share. This
    misinformation was on display this past July, when Mayor Weiers
    testified before this Committee in an oversight hearing on Indian
    gaming. Unfortunately, Mayor Weiers used the opportunity to vigorously
    present his personal views, which were in direct opposition to the
    actual and official position of the City of Glendale.
        But as former President Ronald Reagan once said, ``facts are
    stubborn things.'' When the majority of my colleagues on Council and I
    were presented with the facts about the West Valley resort and casino
    it became clear that this project was right for our community. Through
    this process, we learned a great deal, not only about jobs and positive
    economic impact, but also about the history of the Nation's plans and
    gaming in Arizona. We examined, with open minds, the claims made by the
    Nation's opponents--claims that the Nation had hid its intentions from
    other tribes or that the tribes had promised that there would be ``no
    new casinos in Phoenix.'' When we looked at the facts, presented in
    administrative and court proceedings, we found these claims totally
    lacking. Evidence presented in federal court showed that East Valley
    casino interests and State legislators knew about the Nation's rights
    under its settlement act and in fact sought prohibitions on gaming
    similar to H.R. 1410/S. 2670 during negotiations over the gaming
    compacts. However, these market protection prohibitions were rejected
    and were never incorporated into the compact that the State of Arizona
    and all the tribes (including the East Valley tribes) signed.
        In other words, East Valley interests are now seeking to obtain
    from Congress through H.R. 1410/S. 2670 the prohibitions that they were
    unsuccessful in negotiating back in 2002--at the expense of my
    community in the West Valley and in violation of the promises made to
    the Tohono O'odham Nation. These opponents have spent lots of money and
    thrown every conceivable form of mud against the wall, but none of it
    has stuck. H.R. 1410/S. 2670 is just the latest attempt to protect East
    Valley casino market share. As a longtime Glendale business owner
    recently said to me, this legislation is more properly titled the
    ``Keeping the Profits Act of 2014.''
        After careful examination of these facts, the City formally voted
    in July and August to support the use of the Nation's West Valley
    Resort property for gaming and to enter into a formal agreement that
    provides significant mutual benefits to the City for years to come.
    Under the uniform Arizona tribal-state gaming compacts, Indian tribes
    are required to share a portion of their gaming revenues with the State
    of Arizona. However, unlike some gaming compacts in other states, there
    is no requirement that this revenue go to particular communities.
    Instead, in Arizona, while tribes must devote a portion of this revenue
    sharing to local communities, it is up to each to tribe to determine
    which communities receive these grants. To my knowledge, the agreement
    that the City has struck with the Tohono O'odham Nation goes well
    beyond any other tribal gaming revenue grant or casino impact agreement
    in Arizona in terms of direct benefits to a municipality. Under the
    agreement:

       The City will receive funding in excess of $26 million
            during the 20-year term of the agreement;

       The City has already received an initial good faith payment
            of $500,000;

       Unlike development deals that the City has entered into in
            prior decades, the City will not pay one dime to the Nation for
            construction costs, infrastructure costs in and around the
            site, and municipal services such as water and wastewater.
            Instead, the Nation will pay for all of these costs;

       The Nation will pay Glendale's monthly standard fees and
            service charge rates for commercial customers on the site.

        More important to the City than these specified benefits, however,
    are the jobs, economic impacts, and revenue sharing that the project is
    beginning to generate for the West Valley and the State of Arizona.
        I am sorry to report that despite these benefits and the views of
    Glendale residents (who in poll after poll express overwhelming support
    for the West Valley Resort), East Valley casino interests are now
    paying signature gatherers to mislead Glendale residents into signing a
    petition to challenge the City's agreement with the Nation. As has been
    widely reported in the press, these paid signature gatherers have been
    caught on tape lying to Glendale voters, suggesting that the petition
    is in favor of the West Valley Resort. Thankfully, even Mayor Weiers
    has acknowledged that this dishonest publicity stunt will not in any
    way affect the City's agreement.
        I recently had the honor of participating in an historic
    groundbreaking ceremony on the project site with Tohono O'odham Nation
    Chairman Ned Norris, construction and building development
    representatives, and more than 200 other tribal and municipal leaders.
    I have not seen such a demonstration of regional cooperation since we
    collaborated on building the Arizona Cardinals Stadium in Glendale more
    than a decade ago. Construction on the West Valley Resort site is now
    underway.
        I have met personally with representatives of the other major
    sports, entertainment and retail industries in Glendale, including the
    Phoenix Coyotes, Arizona Cardinals, Tanger Outlet Mall, the Renaissance
    Hotel, and many other restaurants and businesses, all of whom have
    expressed support for the Nation's project and the secondary benefits
    that it will bring to their franchises. We also have heard from other
    developers who are excited about the West Valley Resort and who are now
    interested in investing in our community. In short, this project is
    already beginning to pay dividends.
        For all these reasons I respectfully urge Congress not to reach
    back from Washington, D.C. to interfere in our efforts to improve the
    lives of our citizens. Do not crush the dreams of my constituents and
    those of my sister cities, who have waited patiently for the jobs,
    investment in our community, and economic development which this
    project already has begun to bring to the West Valley. We urge the
    Senate Indian Affairs Committee to see past the misinformation campaign
    waged by East Valley casino interests which are pushing a false
    narrative in order to change federal law and break a promise made by
    President Reagan and the U.S. Congress to the Tohono O'odham Nation
    more than twenty-five years ago. Congress should be doing everything it
    can to foster economic development and positive working relationships
    between tribal and local governments, not moving forward special
    interest, market-protection legislation. The City of Glendale is asking
    you not to destroy this valuable partnership between the Tohono O'odham
    Nation and my community. We are emphatically urging this Committee to
    prevent H.R. 1410/S. 2670 from moving forward out of this Committee,
    and urging the Committee to do everything in its power to ensure that
    it does not become law.
        On behalf of the City of Glendale, I want to thank you for this
    opportunity to testify on this matter, which is of such great
    importance to the City of Glendale. I and Councilman Chavira would be
    pleased to answer any questions that the Committee may have.

        The Chairman. Thank you, Councilman Sherwood. Chairman
    Norris?

      STATEMENT OF HON. NED NORRIS, JR., CHAIRMAN, TOHONO O'ODHAM
                           NATION OF ARIZONA

        Mr. Norris. Chairman Tester, Senator McCain and honorable
    members of the Committee, good afternoon.
        This is now the fourth time that I have come before
    Congress to testify about this legislation. If enacted, it
    would commit a profound injustice against the Tohono O'odham
    Nation and set a terrible precedent for Indian Country.
    Although I do very much appreciate the opportunity to provide
    our views on this bill, the Nation is profoundly disappointed
    that Congress continues to entertain the cynically-named Keep
    the Promise Act.
        This legislation shows no respect for the clear terms of
    the 1986 settlement agreement between the Nation and the United
    States, no respect for the contractual agreement between the
    Nation and the State of Arizona in our 2003 gaming compact, no
    respect for the Federal courts and administrative agencies
    which, in 16 decisions, have reviewed the settlement, the
    compact, the law and found in favor of the Nation, and no
    respect for the United States' trust responsibility to the
    Tohono O'odham Nation.
        At the heart of this matter, as I have testified
    previously, is the fact that the Corps of Engineers destroyed
    nearly 10,000 acres of the Nation's Gila Bend Reservation in
    Maricopa County. In 1986, Congress enacted the Gila Bend Indian
    Reservation Lands Replacement Act to compensate the Nation for
    the loss of its land and valuable water rights. An important
    part of this settlement is the right to acquire replacement
    land that has the same legal status as the destroyed land.
        Most of our reservation land is located in remote, isolated
    areas. Our population is one of the poorest in the United
    States, with average individual incomes just over $8,000. As
    Congress clearly provided in 1986, the Nation will develop its
    replacement reservation land to generate revenue for public
    services and employment for our people.
        In deciding to use our land for gaming, we relied on the
    plain language of the Gila Bend Act, which promises that we can
    use our replacement land as a Federal reservation for all
    purposes, the Indian Gaming Regulatory Act, which explicitly
    allows settlement lands to be used for gaming, and our tribal-
    State gaming compact, which the State and all Arizona gaming
    tribes negotiated and signed and which explicitly allows gaming
    on new lands consistent with the requirements of IGRA.
        The Nation has had it with the constant misinformation and
    rhetoric about back room deals and secret plots. These
    arguments have been litigated and rejected by the courts. Here
    are the facts. Not only is the Gila Band Act a public law that
    was the subject of extensive hearings in the 1980s, its land
    acquisition authority was explicitly preserved in the 2004
    Arizona Water Settlements Act, by which Gila River Indian
    Community secured its enormously valuable water rights
    settlement.
        Further, not only does the tribal-State compact clearly
    allow the Nation to game on this settlement land in Maricopa
    County, it also explicitly prohibits outside agreements which
    would change the compact terms.
        Our sister tribes have long benefited from the advice of
    numerous experienced attorneys. The idea that these tribes have
    no understanding of the Nation's rights under the plain
    language of the Gila Bend Act, IGRA and the tribal-State
    compact is, as the United States courts declared, ``entirely
    unreasonable.''
        The Gila River Indian Community, the Salt River Indian
    Community and the Tohono O'odham Nation are relatives and
    friends. Our shared history is vitally important to the Nation.
    But these tribes' continued assault on the Nation's rights has
    taken a toll. We ask these tribes to carefully consider the
    damage their efforts are causing, both in Arizona and in Indian
    Country generally.
        Honorable members of the Committee, the Nation respectfully
    urges that you put an end to this misguided, cynical
    legislation. It breaks the promises made by the United States
    and in Indian land and water rights settlements. It
    unilaterally amends the negotiated terms of federally-approved
    tribal-State gaming compacts. Most of all, it is a return to a
    dishonorable era of Federal Indian policy and will leave a
    black mark on this Committee and this Congress' legacy.
        Thank you. I would be pleased to answer any questions the
    Committee may have.
        [The prepared statement of Mr. Norris follows:]

     Prepared Statement of Hon. Ned Norris, Jr., Chairman, Tohono O'odham
                                     Nation
        My name is Ned Norris, Jr. I am the elected Chairman of the Tohono
    O'odham Nation. The Nation is a federally recognized tribe with more
    than 32,000 members. Our people have lived since time immemorial in
    southern and central Arizona where our non-contiguous reservation
    lands--including our West Valley Reservation in Maricopa County--are
    located. I thank Chairman Tester and the Committee for holding a
    legislative hearing on H.R. 1410/S. 2670, and for giving the Nation an
    opportunity to testify about this bill. If enacted, this legislation
    will effect a profound injustice upon the Tohono O'odham Nation, one
    that will besmirch the United States' honor and set a terrible
    precedent for its relationship with Indian Country. The Nation is
    deeply disappointed that Congress is even considering this
    legislation--a bill that shows no respect for the clear terms of
    agreements negotiated between sovereign governments, that would break
    the promises the United States has made to my Nation, in a land and
    water settlement we all agreed to, and that will re-open up water
    rights claims on the Gila River. I come before Congress, now for the
    fourth time, to highlight the many problems with this legislation.
        On July 23rd, during this Committee's oversight hearing on Indian
    gaming, I submitted testimony describing the destruction of our Gila
    Bend Indian Reservation in Maricopa County, the result of perpetual
    flooding caused by a dam built by the United States Army Corps of
    Engineers. I also described the federal legislation enacted in 1986 to
    compensate the Nation for its losses and the Corps' wrongdoing--the
    Gila Bend Indian Reservation Lands Replacement Act (Pub. L. 99-503).
    Because I would like to focus my remarks today on the far-reaching,
    negative precedent that this bill would set, I will only briefly
    summarize my prior testimony about the destruction and loss of property
    and water rights suffered by the Nation.
    Historical Context: Destruction of Thenation's Gila Bend Reservation
            and the 1986 Gila Bend Act
        In the 1950s, the Corps of Engineers built the Painted Rock Dam to
    protect large commercial farms downstream from our Gila Bend
    Reservation, which at that time contained about 10,000 acres of prime
    agricultural land. The dam caused perpetual flooding of the
    reservation, destroying our homes and our farms, making the land
    unusable, and forcing the residents to move to a 40-acre parcel known
    as San Lucy Village. Our tribal members continue to live there today,
    well below the poverty line, with multiple families crowded into small
    substandard housing. The Corps had no Congressional authorization or
    tribal consent to flood our land, and the resulting destruction
    constituted a taking of our property rights as well as a significant
    breach of trust by our federal trustee.
        In an effort to avoid litigation, Congress instructed the
    Department of the Interior to search for agricultural replacement lands
    within a 100-mile radius of our flooded reservation, but none could be
    found. As a result, in 1986 Congress enacted legislation that would
    instead compensate the Nation by providing the Nation the right to
    locate and acquire replacement lands in Maricopa, Pima or Pinal
    Counties (where our various reservation areas are located). In exchange
    the Nation was required to relinquish its title to nearly all of the
    Gila Bend reservation lands and the water rights appurtenant to it, and
    its legal claims against the United States. That settlement statute,
    the Gila Bend Indian Reservation Lands Replacement Act (Pub. L. 99-503)
    (Gila Bend Act), provided that the Nation's replacement lands were to
    have the same status as the lands that we lost, i.e., the replacement
    lands are to be treated as a ``Federal Indian Reservation for all
    purposes.'' Id.,  6(d) (emphasis added). The Gila Bend Act also made
    clear that Congress' intention was to ``facilitate replacement of
    reservation lands with lands suitable for sustained economic use which
    is not principally farming.'' Id.  2(4) (emphasis added). In addition,
    the United States would pay the Nation $30 million, which was only a
    small fraction of the value of our lost land and water rights.
        As Senator DeConcini (one of the sponsors of the Gila Bend Act)
    noted on the pending bill, ``Over 3 years of work have gone into this
    settlement.[P]rofessional staff of the House Interior Committee, as
    well as other staffs, have spent a great deal of time on trying to
    develop a fair and reasonable settlement.'' 132 Cong. Rec. S14457-01
    (October 1, 1986). Relying on the United States' promises in this
    settlement legislation, (which Act the Department of the Interior has
    described as ``akin to a treaty,'' Tohono O'odham Nation v. Acting
    Phoenix Area Director, Bureau of Indian Affairs, 22 IBIA 220, 233
    (1992)) the Nation executed a settlement agreement in 1987, giving up
    our right to sue the United States and relinquishing our land and water
    rights claims.
    The Gila Bend Act Makes Clear That Our Land is a ``Federal Indian
            Reservation for All Purposes''--Including Gaming
        At the same time Congress was considering the Gila Bend Act, it
    also was holding extensive hearings on predecessor Indian gaming
    legislation that ultimately would become the Indian Gaming Regulatory
    Act, Pub. L. 100-497 (IGRA). \1\ Two years prior to passage of the 1986
    Gila Bend Act, the Department of the Interior testified before the
    House Interior and Insular Affairs Committee that 80 Indian tribes were
    engaged in some form of gaming on their reservations. H. Hrg. No. 98-
    46, at 62 (June 19, 1984). \2\ The Nation (then known as the Papago
    Tribe) was one of these tribes, having operated Papago Bingo on one of
    its reservations outside Tucson since 1984. Id., at 117. \3\
    ---------------------------------------------------------------------------
        \1\ See, e.g., Hrg. No. 98-46, on H.R. 4566 (June 19, 1984); H.R.
    6390, Indian Country Gambling Regulation Act (98th Congress); H.R.
    4566, Indian Gambling Control Act (98th Congress); Hrg. No. 99-55 Part
    I, on H.R. 1920 & H.R. 2404 (June 25, 1985); Hrg. No. 99-207, on S. 902
    (June 26, 1985); Hrg. No. 99-55 Part II, on H.R. 1920 & H.R. 2404 (Nov.
    14, 1985); H. Rep. No. 99-488, to accompany H.R. 1920 (Mar. 10, 1986);
    Hrg. No. 99-887, on S. 902 (June 17, 1986); S. Rep. No. 99-493, To
    Accompany H.R. 1920 (Sept. 24, 1986); H.R. 3130, An Act to Prohibit
    Granting of Trust Status to Indian Lands to be used for the Conduct of
    Gaming Activities (99th Congress); S. 2557, Indian Gaming and
    Authorization Act of 1986 (99th Congress); Amendment No. 3226, to H.R.
    1920, 134 Cong. Rec. S15390 (Oct. 6, 1986); H.R. 1920, Indian Gambling
    Control Act--(99th Congress); S. 902, Indian Gambling Control Act (99th
    Congress); see also, Franklin Ducheneaux, The Indian Gaming Regulatory
    Act: Background and Legislative History, Arizona State Law Journal,
    Volume 42, Number 1, Spring 2010, 99.
        \2\ In contrast, prior to IGRA's enactment, if Congress wanted to
    restrict or ban gaming on new trust land, Congress explicitly included
    language to that effect. See, e.g., the Florida Indian Land Claims Act
    of 1982, Pub. L. 97-399 (Dec. 31, 1982), the Ysleta del Sur Pueblo
    Restoration Act, Pub. L. 100-89, Tit. I (Aug. 18, 1987) and the Alabama
    and Coushatta Indian Tribes of Texas Restoration Act, Pub. L. 100-89
    Tit. II (Aug. 18, 1987). If Congress had intended to impose a similar
    restriction on the Nation, it would have done so explicitly in the 1986
    Gila Bend Act--but it did not. Just as important, the Nation absolutely
    never agreed to such a condition, and no such condition exists in the
    1987 settlement agreement signed by the Nation and the United States.
        \3\ The Nation's gaming establishment was discussed again in IGRA
    predecessor legislation hearings before the same Committee in 1985.
    Hrg. No. 99-55 Part I, on H.R. 1920 & H.R. 2404 at 29.
    ---------------------------------------------------------------------------
        Given this history, and given the fact that the Gila Bend Act
    itself requires that the settlement land acquired under the Gila Bend
    Act ``shall be deemed to be a Federal Indian Reservation for all
    purposes,'' there can be no serious argument that Congress could not
    have foreseen that this land would be used for gaming. To the contrary,
    Congress ensured that the replacement lands would have the same legal
    status as the Nation's destroyed Gila Bend reservation. In IGRA,
    Congress similarly sought to ensure that lands acquired in trust after
    IGRA's 1988 enactment date as part of the settlement of a land claim
    would be treated equally to the pre-IGRA claim lands they were intended
    to replace (i.e., the new lands would be gaming-eligible just as were
    the claim lands that were lost). As explained by former Interior
    Secretary Salazar:

             Certain lands that are acquired after IGRA's passage in 1988
            are treated under the statute as though they were part of pre-
            IGRA reservation lands, and, therefore, are eligible for gaming
            purposes. . .Lands that are taken into trust for settlement of
            a land claim, as part of an initial reservation, or as
            restoration of lands for a tribe that is restored to federal
            recognition are also excepted from the IGRA prohibition in
            order to place certain tribes on equal footing.

        See Memorandum from the Secretary to the Assistant Secretary for
    Indian Affairs, ``Decisions on Gaming Applications'' (June 18, 2010) at
    2 (emphasis added), available at http://www.bia.gov/cs/groups/public/
    documents/text/idc009878.pdf. Indeed, lands acquired pursuant to the
    1986 Gila Bend Act are the quintessential type of lands that IGRA
    intended to protect through the equal footing exceptions. Under the
    Act, the Nation may acquire land to replace the acreage destroyed by
    the Painted Rock Dam see Pub. L. 99-503 at Section 6(c) so that the
    replacement land will have the same gaming eligibility status as the
    land it replaces.
    The Nation's West Valley Reservation
        In keeping with the requirements of the Gila Bend Act, which limit
    the location and the amount of replacement land the Nation may acquire,
    the Nation purchased unincorporated land in Maricopa County located in
    the ``West Valley'' (an area west of the City of Phoenix). The land is
    about 49 miles from the Gila Bend Reservation, between the cities of
    Glendale and Peoria. Both the federal courts and the Department of the
    Interior have determined that our West Valley land meets the strict
    statutory requirements in the Gila Bend Act. In July the Department of
    the Interior complied with its congressionally-imposed duty to acquire
    the land in trust, and it is now a part of the Tohono O'odham
    Reservation. Letter of Kevin Washburn, Assistant Secretary--Indian
    Affairs, United States Department of the Interior, to Ned Norris Jr.,
    Chairman, Tohono O'odham Nation (July 3, 2014).
        Although the Nation's West Valley reservation is a significant
    distance (more than twenty miles) from other tribal gaming operations
    in the Phoenix metropolitan area, a few tribes with Phoenix area gaming
    facilities vigorously urge passage of S. 2670/H.R. 1410. Early on they
    urged that the legislation was necessary because the Nation's actions
    violated the Gila Bend Act, the Nation's tribal-state gaming compact,
    and IGRA. When the federal courts rejected their claims, these tribes
    started to shift to new arguments. Most recently, they claim that the
    legislation is needed to prevent the Nation from violating some
    unwritten, back-room promise, and they further argue that without the
    legislation, there will be no way to stop an explosion of new gaming in
    the East Valley (the area east of the City of Phoenix). In fact, these
    tribes vigorously oppose the Nation's project because they have long
    enjoyed a monopoly in one of the biggest gaming markets in the United
    States, and the simple fact is that they would prefer not to share that
    market. Based on these market share concerns, they have urged the
    introduction and enactment of S. 2670 and its companion bill H.R. 1410.
        Their arguments having been rejected in every other venue, the
    proponents of H.R. 1410/S. 2670 come to Congress as a last resort to
    ask it to enact legislation that unilaterally inserts into the Nation's
    tribal-state gaming compact a new restriction which was never
    negotiated and to which the Nation never would have agreed--a
    prohibition against developing our West Valley reservation the way we
    have every right to do under the Gila Bend Act, the Indian Gaming
    Regulatory Act, and our Secretarially-approved tribal-state gaming
    compact. This use of a unilateral amendment to eviscerate our land and
    water rights settlement is unprecedented--Congress has never in the
    modern era unilaterally abrogated either a settlement or a tribal-state
    gaming compact. And it should not start now.
    H.R. 1410/S. 2670 Is Dangerous Precedent
        As discussed in more detailed elsewhere, the Gila Bend Act settles
    the Nation's claims for the unauthorized flooding of nearly 10,000
    acres of its Gila Bend Reservation, providing for the purchase of
    replacement lands that will be treated the same as the Nation's lost
    reservation lands. In exchange, the Nation gave up it legal claims
    against the United States, including its water rights claims, and title
    to its Gila Bend reservation lands. H.R.1410/S. 2670 would
    fundamentally alter these terms by no longer treating the Nation's
    replacement land as a ``federal reservation for all purposes''--
    enactment of this legislation would mean that the replacement land
    henceforth will be treated as ``a federal reservation for all purposes
    except Indian gaming''.
        In testimony before the House Natural Resources Committee on S.
    2670's companion bill H.R. 1410 and its predecessor bill H.R. 2938, the
    Department of the Interior has twice opposed the proposed legislation
    in no small part because it unilaterally interferes with a federally-
    enacted settlement and a federally-approved tribal-state gaming
    compact. See Testimony of Paula Hart, Director, Office of Indian
    Gaming, U.S. Department of the Interior, Before the Subcommittee on
    Indian and Alaska Native Affairs, Committee on Natural Resources, U.S.
    House of Representatives (October 4, 2011); Testimony of Michael Black,
    Director, Bureau of Indian Affairs, United States Department of the
    Interior, Before the Subcommittee on Indian and Alaska Native Affairs,
    Committee on Natural Resources, U.S. House of Representatives (May 16,
    2013) . The Department's objections have remained consistent, noting
    that:

             H.R. 1410 would negatively impact the Nation's ``all
            purposes'' use of selected lands under the Gila Bend Act by
            limiting the Nation's ability to conduct Class II and Class III
            gaming on such selected lands. . .H.R. 1410 would specifically
            impact the Gila Bend Act by imposing additional restrictions
            beyond those agreed upon by the United States and the Tohono
            O'odham Nation 25 years ago. The Department cannot support
            legislation that specifically impacts an agreement so long
            after the fact. . .The effect of this legislation would be to
            add a tribespecific and area-specific limitation to the IGRA.

            Black Testimony at 2-3(emphasis added).

        The Department further underscored its concern ``about establishing
    a precedent for singling out particular tribes through legislation to
    restrict their access to equal application of the law.'' Id. We
    understand that the Department of the Interior will again testify at
    this hearing, and we trust it will raise the same concerns with the
    Senate Indian Affairs Committee as it did with the House Natural
    Resources Committee.
        In her testimony before the Committee, outgoing Salt River Indian
    Community President Diane Enos argued that H.R. 1410 would not create a
    dangerous precedent, and she insisted that that there are other
    examples of federal legislation similar to H.R. 1410. Testimony of
    President Diane Enos, Oversight Hearing on ``Indian Gaming: The Next 25
    Years,'' at 4-5 (July 23, 2014). But this is untrue, and each of her
    examples is demonstrably misleading. None of the legislation she
    identified involved the kind of settlement agreement reached between
    the United States and the Nation, where in return for giving up its
    destroyed reservation, the United States agreed to take land into trust
    for the Nation and treat it as a ``Federal Indian Reservation for all
    purposes.'' In fact, few of the statutes she cited involved any sort of
    settlement agreement at all. For example, the Colorado River Indian
    Reservation Boundary Correction Act, the Siletz and Grand Ronde Tribe
    acts, and the Indian Pueblo Cultural Center Clarification Act all
    involved land grants by Congress without the kind of contract and trust
    promises that are central to the Nation's settlement act and agreement.
    See Pub. L. 10947 (Aug. 2, 2005); Pub. L. 110-78 (Aug. 13, 2007); and
    Pub. L. 111-354 (Jan 4. 2011). Others, like the amendments to the Rhode
    Island Indian Claims Settlement Act, concerned the ability of the State
    of Rhode Island to prohibit gaming by multiple tribes when those tribes
    had agreed to state jurisdiction as part of the original settlement.
    See Pub. L. 104-208; Narragansett Indian Tribe v. Nat'l Indian Gaming
    Comm., 158 F.3d 1335 (D.C. Cir. 1998)). In contrast, H.R. 1410 would
    have Congress unilaterally amend an agreement with a single Indian
    tribe that would eliminate legal rights that this tribe possesses.
    Finally, the amendments to the Mashantucket Pequot Settlement Act
    provided for additional benefits to the tribe (in the form of lease
    extensions) at that Tribe's request. See Pub. L. 110-228.
        In short, amending settlement legislation over the express
    objection of the Department of the Interior (which now holds title to
    the land) and the Nation (for whose beneficial interest the land is
    held in trust) cannot even remotely be analogized to ``routine
    restrictions'' on ``legislation involving Indian land'' or
    ``revisit[ing] existing statutes to clarify the party's intent'' as
    former President Enos urged. None of the examples cited by the tribal
    proponents of H.R. 1410/S. 2670 are similar or even relevant to the
    statutory provisions in S. 2670, which would fundamentally change the
    terms of an existing land and water rights settlement reached by the
    Nation and the United States some 25 years ago over the objections of
    both of the parties to that settlement. H.R. 1410/S. 2670 thus serves
    as a powerful disincentive to tribes that are considering whether or
    not to enter into settlement agreements.
        Think of it this way. If H.R. 1410/S. 2670 is deemed acceptable for
    enactment, then there also is no reason why Congress should not, at the
    behest of competing water users, ``impose additional restrictions
    beyond those agreed upon by the United States and the [Community]'' on
    the Gila River Indian Community pursuant to the Arizona Water
    Settlements Act, Pub. L. 108-451, and no reason why Congress should not
    pass legislation that ``specifically impacts'' the Salt River Pima-
    Maricopa Indian Community Water Rights Settlement Act, Pub. L. 100-512.
    Such legislation might, for example, impose additional unilateral
    restrictions on the manner of each Tribe's use of the water rights
    allocated under their respective settlement agreements. The Nation has
    no doubt that if Congress were trying to unilaterally amend either of
    these tribes' settlements, these tribes would object as strenuously as
    the Nation does to H.R. 1410/S. 2670.
        Given the United States' long, ugly history of unilaterally
    breaking its treaties with tribal nations, this Congress should think
    long and hard about reviving that dishonorable legacy with this
    legislation.
    If Enacted, S. 2670 Will Create New Liabilities for the United States
            and
            Destabilize Ongoing Water Rights Litigation
        Because S. 2670 would deny the benefits that the United States
    promised to the Nation in return for the Nation waiving its land and
    water rights claims (by preventing the Nation from using its West
    Valley Reservation for economic development and as a reservation for
    all purposes), it would effectively unravel the settlement agreement
    embodied in the Gila Bend Act, giving rise to new takings and breach of
    contract claims against the United States and upsetting active water
    rights litigation.
    Fifth Amendment Takings Claim
        The U.S. Constitution provides that private property may not be
    ``taken for public use, without just compensation.'' See U.S. Const.,
    amend. V; Penn Central Transp. Co. v. City of New York, 438 U.S. 104,
    124 (1978). S. 2670 would take away the Nation's right, as confirmed by
    the court in the litigation brought by the Nation's opponents, to use
    its West Valley Reservation for gaming-related economic development.
    See Forest County Potawatomi Cmty. of Wis. v. Doyle, 828 F. Supp. 1401,
    1408 (W.D. Wis. 1993) (Indian tribe had a property interest in the
    right to game under its Tribal-State compact). By interfering with the
    Nation's investment-backed expectations that it can conduct gaming on
    its West Valley reservation under its tribal-state compact and thereby
    causing substantial economic harm to the Nation, S. 2670 would effect a
    taking that requires just compensation, and therefore exposes United
    States to liability for substantial damages.
    Breach of Contract
        The Gila Bend Act provided that, in return for waiving its claims
    against the United States and giving up title to its land and water
    rights on the Gila Bend Reservation, the Nation could acquire
    replacement lands in unincorporated Maricopa, Pima, or Pinal Counties
    that would be treated as a reservation ``for all purposes.'' In 1987,
    the Nation entered into a settlement agreement--i.e., a contract--with
    the United States in which it did indeed relinquish its claims and its
    land and water rights in consideration for the United States' promises
    in the 1986 Gila Bend Act. S. 2670 breaches that agreement. It is
    settled law that when the United States enters into a contract, its
    rights and duties under the contract are governed by the same law
    applicable to contracts between private individuals. United States v.
    Winstar Corp., 518 U.S. 839, 895 (1996). If S. 2670 is enacted into
    law, the Nation will sue the United States for breach of this 1987
    agreement. Damages will likely be substantial, based on the fact that
    lost future profits from the Nation's planned gaming facility during
    the term of the compact would amount to hundreds of millions of
    dollars, if not more.
    Water Rights Claims
        The legislative history underpinning the Gila Bend Act makes clear
    that a ``major component in [the tribe's] valuation of the reservation
    is its as-yet unquantified Winters right to the surface and underground
    flow of the Gila River, with a priority date of 1882.'' H.R. Rep. 99-
    851 at 8 (1986). Thus, when the Nation gave up its right to the Gila
    Bend Indian Reservation, it also gave up its right to the water rights
    appurtenant to it. The legislative history explains, ``Expressed in
    terms of practicably irrigable acres times 5.4 acre-feet, this right
    could amount to as much as 32,000 acre-feet. . . [T]he tribe thus views
    the value of their land and its water and any damage claims against the
    United States and third parties to be in excess of $100,000,000.'' Id.,
    at 8-9 (emphasis added). In other words, the lost water right alone was
    worth in excess of one hundred million dollars in 1986--certainly that
    water would be worth even more today.
        By unilaterally altering the terms of the settlement agreement,
    H.R. 1410/S. 1670 effectively reopens claims that were settled by the
    agreement, including the Nation's claims to nearly 36,000 \4\ acre-feet
    of water per year and additional water rights-related damage claims
    against the United States and third parties worth in excess of
    $100,000,000 (in 1986 dollars). Because the Gila Bend Reservation has
    an 1882 priority date, the Nation's 36,000 acre-feet per year would
    have priority over the vast majority of claimants in the ongoing Gila
    River General Stream Adjudication. Litigation over the quantification
    and delivery of the Nation's Gila River water rights is ongoing, and
    this legislation therefore would destabilize the adjudication of the
    water rights claims of thousands of municipal and private interests
    throughout Arizona with junior priority dates.
    ---------------------------------------------------------------------------
        \4\ The United States later determined that the 32,000 acre foot
    figure cited in the Gila Bend Act's legislative history was in fact too
    low, and filed a claim for 35,965 acre feet of water in the Gila River
    Adjudication. See, Statement of Claimant, United States ex rel. Gila
    Bend Indian Reservation Tohono O'odham Nation, No. 39-35090 (Ariz.
    Super. Ct. Maricopa County Mar. 25, 1987).
    ---------------------------------------------------------------------------
    H.R. 1410/S. 2670 Breaks the Court-Confirmed Promises Embodied in the
            Tribal-State Compacts
        Apart from setting dangerous precedent in the context of Indian
    land and water rights settlements, H.R. 1410/S. 2670 also interferes
    with the mutually-agreed to contractual promises that are embodied in
    the tribal-state compacts entered into by the State of Arizona, the
    Nation, and the Gila River and Salt River tribes. Although the
    proponents of H.R. 1410/S. 2670 attempt to re-write history by arguing
    that the Nation made some ``promise'' not to conduct gaming in the
    Phoenix area, in fact, as revealed in the litigation, the Gila River
    and Salt River tribes and the State of Arizona: (1) were well aware of
    the Nation's right to conduct gaming on its settlement lands long prior
    to the signing of the 2003 gaming compacts, and (2) tried but failed to
    insert language into the compacts to prevent tribes from gaming on
    after-acquired lands (such as replacement lands acquired under a land
    claim settlement).
        In the end, the tribes and the State explicitly agreed in the
    tribal-state compacts they each signed that gaming on lands acquired in
    accordance with IGRA's equal footing exceptions would be permitted. A
    federal court has confirmed that ``the Nation's construction of a
    casino on the Glendale-area land will not violate the Compact'' and
    that ``gaming on that land is expressly permitted'' by IGRA. Arizona v.
    Tohono O'odham Nation, 944 F.Supp.2d at 753-54 (D. Ariz. 2013). H.R.
    1410/S. 2670 would re-write the tribal-state compact to provide these
    wealthy tribes a monopoly that they tried and failed to obtain in good
    faith negotiations--and break the promises made to the Nation.
    1992-2001: The Nation informs Arizona, Gila River, and Salt River of
            its Rights under the Gila Bend Act
        Evidence presented in court showed that the Nation's opponents were
    repeatedly made aware of the Nation's rights under the 1986 Gila Bend
    Act. During a recorded July 15, 1992 meeting, the Nation explicitly
    informed gaming negotiators for the State of its position that land
    acquired under the 1986 Gila Bend Act would be eligible for gaming.
    Arizona et al. v. Tohono O'odham Nation, CV11-0296-PHX-DGC, 7/15/92
    Tohono/Arizona Reps. Mtg. Tr. 3. Later, in the mid-1990s, a
    representative of the Nation informed the former president of the Salt
    River tribe (and key 2002 compact negotiator) of the Nation's right to
    conduct gaming on land acquired under the 1986 Gila Bend Act. Id.,
    Antone Dep. at 76 (5/24/12). Finally, in 2001, one of the Gila River
    tribe's compact negotiators was informed about the Nation's land
    acquisition rights under the Gila Bend Act. Id., Supp. Resp. to Pl.
    First Set of Non-Unif. Interrog. (5/14/12).
    2001-2002: Arizona and Gila River Try to Introduce Compact Language to
            Prevent Gaming on After- Acquired Lands During Compact
            Negotiations; the Tribes
            Collectively Reject These Attempts
        What is more, as the district court noted, the Nation presented
    evidence that the State and Gila River ``proposed during negotiations
    that gaming on after-acquired lands be prohibited'' but that this
    proposal ``was rejected and not included in the Compact.'' Arizona v.
    Tohono O'odham Nation, 944 F.Supp.2d at 767. During later compact
    negotiations, ``some State legislators attempted to . exclude all
    gaming on after-acquired lands precisely to avoid gaming on
    noncontiguous reservation land such as the [Nation's] Glendale-area
    land.'' Id. These efforts also were rejected. Id.
    2002: Gila River, Salt River, and Arizona Agree to Language in the
            Compact that Expressly Permits Gaming on After-Acquired Lands
        In the end, the State, Gila River and Salt River explicitly agreed
    in the final tribal-state compact that gaming would be permitted on any
    Indian lands that meet the requirements of IGRA, including on ``after-
    acquired lands'' acquired under a land claim settlement. See Compact at
    Section 3(j)(1), Proposition 202, A.R.S.  5-601.02(I)(6)(b)(iii). The
    federal court found that the tribes ``did not reach . . . an agreement
    `` that would ``prohibit the Nation from building a new casino in the
    Phoenix area.'' Arizona v. Tohono O'odham Nation, 944 F.Supp.2d at 753
    (emphasis added).
    2007: Gila River Proposes a Compact Amendment to Prevent Gaming on
            After-
            Acquired Lands in Maricopa, Pima, and Pinal Counties
        In 2007, following numerous failed attempts to protect its gaming
    monopoly, Gila River proposed (unsuccessfully) a compact amendment to
    ``preclude gaming on after-acquired lands.'' Lunn Dep. 72. Gila River's
    proposal was limited to after-acquired lands in Maricopa, Pima, and
    Pinal Counties--the same three counties in which the Nation is
    permitted to acquire settlement lands in trust under the Gila Bend Act.
    2009-2012: Gila River and Salt River Build Three New Casinos in the
            Phoenix
            Metropolitan Area
        Gila River and Salt River now claim that the tribes all promised
    that there would be ``no new casinos in Phoenix.'' In support of this
    argument Gila River and Salt River point to statements in 2002 by
    Arizona's then-governor: ``Proposition 202 ensures that no new casinos
    will be built in the Phoenix metropolitan area . . . for at least 23
    years.'' But Gila River and Salt River themselves have gone on to build
    three new casinos in the Phoenix metropolitan area. See, e.g., GRIC
    opens New Wild Horse Pass Hotel and Casino, Gila River Indian News
    (November 2009, available at http://www.gilariver.org/index.php/news/
    849-gric-opens-new-wild-horse-pass-hotel-and-casino); (``On Fri, Oct.
    30, the Gila River Indian Community opened the doors to its new 100,00
    square foot Wild Horse Pass Casino''), New Vee Quiva Casino & Hotel
    ground breaking, Gila River Indian News (July 2012, available at http:/
    /www.gilariver.org/index.php/july-2012-grin/2919-new-vee-quivacasino-a-
    hotel-ground-breaking) (``The official ground breaking ceremony for the
    new Vee Quiva Casino & Hotel commenced on June 7, 2012 in Komatke,
    District 6 . . . 'Quite frankly I'm very impressed with the
    contemporary and cultural elements that will be added into this new
    casino-hotel,' Mendoza said''); Casinos' quarterly revenue fall eases,
    Arizona Republic (May 5, 2010, available at http://www.azcentral.com/
    business/news/articles/20100505biz-casinos0505.html) (`` . . . the Gila
    and the Salt River Pima-Maricopa Indian communities . . . each invested
    hundreds of millions of dollars to open new casino-hotels amid the
    recession'')
    2012: Multiple Witnesses (including those representing Gila River, Salt
            River, and the State) Contradict the ``No New Casinos in
            Phoenix'' Argument
        Like its sister tribes Gila River and Salt River, the Nation
    explicitly stated at the outset of negotiations that it did not wish to
    be bound by the statements of other tribal leaders. In light of this
    fact, the court held that it ``cannot conclude'' that that the Nation
    shared the views about gaming in Phoenix that other tribal
    organizations may have had. Arizona v. Tohono O'odham Nation, 944 F.
    Supp.2d at 766. And as explained by witnesses not aligned with either
    side of the litigation, the concept of ``no new casinos in Phoenix''
    simply was never a theme or a deal point in the negotiations over the
    gaming compacts and Proposition 202:

       W.M. Smith Dep. 32 (Cocopah Tribe representative) ``Q. Do
            you recall the concept of no new casinos in Phoenix ever being
            broached in the negotiations? A. No.''

       Clapham Dep. 35-36 (Navajo Nation representative) ``Q. There
            was not a single event, to the best of your recollection, that
            could constitute a request for a tribe to waive its rights to
            build a casino in the Phoenix area? A. There were discussions
            about reducing the number of authorized facilities in exchange
            for transfer of machine rights. But I don't remember any
            specific request to deal with not putting another facility in
            Phoenix.''.

       Ochoa Dep. 25 (Yavapai Prescott Tribe representative) ``Q.
            So until this lawsuit came about, though, you had never heard
            anybody talking about how Prop 202 would permit no new casinos
            in the Phoenix area and only one in Tucson? A. Absolutely not.
            No. It wasn't discussed at the meetings I attended.''

        Even Gila River, Salt River, and the State's own witnesses in
    litigation confirmed that the Nation never promised not to conduct
    gaming in the Phoenix area. See, e.g.:

       Walker Dep. 43 (State representative) ``Q. [Y]ou can't point
            to any member of the Nation or any of their lobbyists or
            lawyers who have ever specifically stated that there would be
            no new casinos in the Phoenix area. Correct? A. Correct.''

       Severns Dep. 53-54 (State representative) ``I have no
            recollection of a conversation in which [the Nation] mentioned
            they would or would not build [a casino in Phoenix].''

       Lewis Dep. 44 (Gila River representative) ``Q. [D]uring the
            negotiations, no one from the Tohono O'odham Nation ever stated
            that the Nation would never game in the Phoenix area?...A. I
            don't recall any, right.''

       Makil Dep. 95 (Salt River representative) ``Q. [Y]ou don't
            recall any specific representative of the Nation affirmatively
            stating that the Tohono O'odham would not build casinos in the
            Phoenix area. Correct? A. No one ever said anything to me.''

       Landry Dep. 43 (Salt River representative) ``Q. During the
            negotiations, no one from the Tohono O'odham ever specifically
            stated that the tribe would never game in the Phoenix area, did
            they? A. That's correct.''

       LaSarte Dep. 62-63 (Arizona Indian Gaming Association
            representative) ``Q. And at no time did the State ever ask the
            Tohono O'odham to agree never to game in the Phoenix
            metropolitan area. Correct? . . . [A.] I do not recall any
            discussions for or against the possibility of Tohono O'odham
            gaming in the Phoenix metropolitan market[.]''

    2012-2013: The Federal Court Rejects Gila River and Salt River's
            ``Promise''
            Argument on the Merits
        The Nation's opponents have incorrectly claimed that the courts did
    not reach the merits of the ``promise'' arguments. This is not true.
    The district court soundly rejected that argument--and not simply on
    sovereign immunity grounds as the proponents of this legislation claim.
    In fact, as the oral argument colloquy involving Gila River's lawyer
    (Mr. Tuite) reveals, the court found this argument totally
    unconvincing:

             MR. TUITE: The plaintiffs have alleged sufficient facts to
            show that the parties understood and endorsed the concept that
            a fundamental premise of the compact was the principle that the
            agreement would not result in new gaming facilities being
            constructed in the Phoenix metropolitan area. The Nation now
            claims, however, that the compact permits exactly what is
            alleged it cannot do.

             THE COURT: Mr. Tuite, if that was a fundamental premise of
            this compact, it would have been a real easy thing to say that
            in the compact, right?

             MR. TUITE: Well, a lot of things in retrospect could be easy
            things to say. Yes, Your Honor, that's true. But we think there
            are, based on the allegations we made, good reasons to think
            that the parties didn't feel it necessary to spell that out.

             THE COURT: Well, that's a pretty surprising idea, in my mind,
            for parties who are represented by lawyers and who are
            negotiating a contract that will become a compact that has an
            integration clause that says no other understandings or
            agreements not in writing will be enforceable.

             For somebody with that kind of a clause going into the compact
            saying this other understanding is so fundamental that we don't
            to have say it just didn't make any sense to me.

            Arizona v. Tohono O'odham Nation, Tr. Mot. to Dismiss at
            28:15--29:12 (emphasis added).

        Most devastating to Gila River 's and Salt River's arguments was
    that section 25 of the very Compact that each Arizona tribe signed with
    the State includes an integration clause which explicitly provides that
    ``This Compact contains the entire agreement of the parties with
    respect to the matters covered by this Compact and no other statement,
    agreement, or promise made by any party, officer, or agent of any party
    shall be valid or binding.'' (emphasis added). In other words, the
    parties agreed in the compact that the words of the compact would trump
    any supposed ``side-bar'' promises and that such promises would have no
    effect. Arizona v. Tohono O'odham Nation, 944 F. Supp.2d . at 770-74.
    As explained by the court, because ``[t]he fully integrated compact
    discharges any unwritten understandings,'' id. at 774, plaintiffs'
    claims seeking to enforce a promise that is not in the compact were
    foreclosed on their merits. There is no basis whatsoever for Congress
    to overturn the district court's carefully considered conclusions at
    the behest of the losing litigants.
    Concerns About Expansion of Gaming
        During this Committee's July 23 Oversight Hearing on Indian Gaming,
    concerns were expressed about the potential of another Tohono O'odham
    casino being developed in the East Valley. These arguments are based on
    the worst kind of fear mongering, and reveal that tribes pushing for
    enactment of H.R. 1410 and S. 2670 have run out of credible legal and
    policy arguments. In fact, the Nation has no other eligible land in the
    Phoenix Valley, and it would be a practical impossibility to acquire
    such land and undertake such an effort before our existing tribal-
    gaming compact expires. What is more, we have repeatedly stated, again
    and again, that the Nation has no such plans. Nevertheless, should even
    stronger confirmation be needed to dispel these arguments, the Nation
    stands ready to work to address these concerns.
    Conclusion
        Chairman Tester, Vice Chairman Barrasso, and honorable members of
    this Committee, thank you for giving the Nation the opportunity to
    testify at this legislative hearing. It is our great hope that the
    United States Senate will reject a return to the era of treaty-
    breaking, and that you will help Congress preserve and protect the
    commitments the United States made to the Tohono O'odham Nation when it
    enacted the Gila Bend Indian Reservation Lands Replacement Act. By so
    doing, the Senate will also ensure that the integrity of the tribal-
    state gaming compacting process, as it has been set into law under the
    Indian Gaming Regulatory Act, will not be undermined by private special
    interest bills such as H.R. 1410 and S. 2670. The Nation respectfully,
    and urgently, asks that you help ensure these bills do not become law.

                             Supplemental Testimony

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

        The State of the Tohono O'odham Nation: A Review of Socioeconomic
    Conditions and Change, by the Taylor Policy Group, attachment has been
    retained in the Committee files.

        The Chairman. Thank you, Chairman Norris, for your
    testimony. Thank you all for your testimony. Senator McCain?
        Senator McCain. Thank you, Mr. Chairman.
        Chairman Norris, would you like to, for the record, supply
    the amount of money or revenue that your casinos have gained
    for the tribe on an annual basis?
        Mr. Norris. Mr. Chairman, Senator McCain, I will be happy
    to give that some consideration, but I will not do that without
    the express authorization of my legislative counsel.
        Senator McCain. So you won't tell us how impoverished you
    are. I got it.
        I will provide for the record, Mr. Chairman, the hearings
    that Senator Inouye and I had, including that where the
    attorneys generals, especially, of States that came and
    testified before our Committee, one of their great concerns was
    what would happen is exactly happening now. That was one of the
    reasons why we had great difficulty getting the support of
    governors and attorneys generals, because they said if we don't
    look out, we are going to have Indian gaming operations in the
    middle of our towns and cities. So I would be glad to provide
    the record of the hearings and the conclusions and the
    statements that Senator Inouye and I made at the time of the
    passage of the Indian Gaming Regulatory Act, which clearly was
    designed to prevent a non-contiguous, middle of a metropolitan
    area Indian gaming operation, for which the people have, maybe
    their elected representatives have, maybe some like Mr.
    Sherwood have changed their mind over time. But they have not
    been able to make their will known as far as a very significant
    impact not only in Glendale but in the entire West Side.
        So Mr. Sherwood, out of curiosity, I think you used to be
    very much opposed and even wrote articles in opposition to
    this. What changed your mind?
        Mr. Sherwood. Thank you for the question, Mr. Chair and
    Senator McCain. When I campaigned, I had campaigned against
    this proposed, based on the information I had. And I had read
    quite a bit of information on it. The thing that was
    distressing to me, though, was that in the very beginning there
    was a half hour conversation, when the city first found out
    about this in April 2009. That was the only conversation that
    the previous administration had.
        I was always quite upset by the fact that we didn't have
    the dialogue, we weren't doing very good in the courts. So when
    the new council got seated in January 2013 and we took care of
    the hockey arena situation, we turned our attention to the
    casino issue, which again had been laboring for five years, and
    started having that informal dialogue, and learned quite a bit
    more about the project from the fact this could benefit us in
    many more ways than what the gaming compact even called out
    for.
        So those informal discussions led into formal fact-finding
    in the November time frame, which led to negotiations in March.
    And having gone through that and having voted on this a couple
    of months ago to approve the project and to unequivocally set
    ourselves against this legislation, and the benefits, certainly
    after talking to other developers, we have had several
    developers come to us since this casino project was announced,
    wanting to develop on land in Glendale city proper.
        Senator McCain. Well, thank you. Chairman Norris, I have
    before me information that, I am not sure where it came from,
    but it alleges that your annual revenue from gaming is
    $68,200,000.00. Is that in the ballpark?
        Mr. Norris. Mr. Chairman, Senator McCain, as I stated
    before, without the authorization of my legislative counsel, I
    am not at this point able to disclose, agree or disagree with
    your information.
        Senator McCain. So you refuse to tell this Committee, who
    is expected to support your effort to establish a casino, that
    you won't even tell me whether this is a correct or incorrect
    number, $68,200,000?
        Mr. Norris. Mr. Chairman, Senator McCain, the courts have
    already made that determination on whether or not the Nation is
    within its legal right to be able to establish. And our current
    compact also authorizes it as well.
        Senator McCain. That is not in response to the question I
    asked, Mr. Chairman. You refuse to give, to authenticate or
    disagree with roughly $68,200,000.00 in revenue for your
    Nation? Is that correct, you do not wish to give that
    information? Agree or disagree?
        Mr. Norris. Mr. Chairman, Senator McCain, I am not agreeing
    or disagreeing. What I am saying is----
        Senator McCain. Actually what you have done is refuse to
    answer questions before this Committee. I am not sure why you
    came.
        Mr. Mendoza, is there a concern, Chairman Mendoza,
    President Mendoza, is there a concern that there may be other
    loopholes such as this exploited in using this precedent that
    other casinos would be established in the valley?
        Mr. Mendoza. Mr. Chairman, Senator McCain, thank you for
    that question. I have been hearing about this particular bill
    and if it would create that precedent. In my mind, no. The Act
    has been very consistent with congressional precedents. If you
    will allow me, I will allow my attorney here to offer some
    specifics. Ms. Binney?
        Ms. Binney. Thank you, Senator McCain. The concern that you
    have is a legitimate concern, in that Tohono O'odham, if they
    are able to build this Glendale casino, can actually shut down
    their other three casinos in the Tucson area and move them up
    to the Phoenix area. Basically using the same legal theory.
    That is why the East Valley mayors are so concerned, because
    they thing the same thing that is happening in Glendale can
    happen in the East Valley.
        I think it was Congressman Gosar last time who brought a
    map that showed 200 county islands in other parts of the
    Phoenix Valley where the same thing can happen.
        But more importantly, in the negotiations and during
    litigation, handwritten notes have come out from Tohono
    O'odham's representatives, basically indicating that they would
    do such a thing. They are aware that they have that legal
    ability, if they are successful in Glendale, to shut down the
    other three casinos and move them up to the Phoenix area. That
    is one of the biggest concerns of the East Valley mayors.
        Senator McCain. Well, Mayor Weiers, you find yourself in
    the minority here. Maybe you can tell us how that happened,
    going from the majority to the minority on this issue. I am
    sure it didn't have anything to do with a $26 million
    commitment over several years.
        Mr. Weiers. Mr. Chairman, Senator McCain, I don't actually
    know how I found myself in that position. I have been on a one
    mind and one thought ever since this issue came up, when I was
    in State legislature. I know in our campaign that people had
    ran their campaigns stating certain views and certain beliefs.
    I guess I never really expected people to change their opinion.
    But I don't know exactly how we found ourselves, the same
    facts, the same truths that were there two years ago are the
    same facts and truths today. Nothing has changed. People's
    opinions have changed and how they have changed their mind
    because of those facts and truths, I don't know.
        And sir, I don't know if that is really the question that
    maybe I should be asked, but I'm not exactly sure how we came
    to that position.
        Senator McCain. Thank you.
        Mr. Chairman, it bears repeating to all the witnesses in
    response to some of the statements that the Constitution calls
    for the Congress to have a special responsibility as far as
    Native Americans are concerned. It is written in the
    Constitution. So although some may view this hearing and our
    action as being unwanted interference, it is a specific
    Constitutional responsibility of the Congress of the United
    States.
        So Mr. Chairman, this is a very busy week. We will be
    leaving tomorrow for quite a while. And you were kind enough to
    hold this hearing for me, and I take that as a very special
    favor that you granted me. I want to express openly and
    repeatedly my appreciation for your doing this. I thank you,
    Mr. Chairman.
        The Chairman. Thank you for those kind words, Senator
    McCain. We always appreciate your commitment to the Senate and
    to this Committee. And we thank you for your leadership on a
    number of issues, including this one.
        I have a few questions here, I will start with Governor
    Mendoza. Governor, when it comes to tribal gaming in Arizona
    being successful, could you talk about the kind of success that
    Gila River has enjoyed because of gaming?
        Mr. Mendoza. Thank you for that question, Senator. Gila
    River does enjoy the benefits from our casinos. We have been
    able to fully fund for our students to go to college, any
    college in the world. We have been able to provide funding for
    our public safety, police, fire, our emergency management
    program. We are able to provide programs for our elders, our
    youth, housing, you name it. We have been able to do a lot for
    our community. Again, we are very thankful and blessed.
        The Chairman. I commend you on your commitment to your
    people. Education is one of my priorities.
        You reference, when it comes to expansion of gaming, you
    reference a commitment made by the tribes in 2002 that there
    would be no additional gaming facilities in the Phoenix area.
    In the current gaming compacts, there is a specific limitation
    on the Tohono O'odham from building a fourth facility in the
    Tucson area.
        If the parties thought enough to put a Tucson limitation
    expressly in the compact, why wouldn't the State include such a
    limitation around Phoenix? Any insight into that?
        Mr. Mendoza. Thank you, Senator Tester. Senator Tester, I
    am not an attorney. I am going to allow my attorney to answer
    that for me.
        The Chairman. Well, I think that is a good point that you
    are not an attorney. I am not one, either. So Allison, since
    you are, have at it.
        Ms. Binney. I think there is a little bit of confusion. It
    depends, so in Arizona, it is different than in most other
    States. Most of those State, the governors can just go and
    negotiate a compact directly with the tribes, enter into it. In
    Arizona, that is not the case. The government had to get
    authority from the voters to enter into compacts. So the voters
    voted on a model compact. I actually have the proposition that
    the voters had there.
        So Tohono O'odham does say, like, nowhere in the model
    compact or the compact does it say, Tohono O'odham can't go
    into Phoenix. One, there was no need to say that in the
    compact, because no one ever thought that would happen. But
    two, in all the negotiations, which are the key part of what
    this bill is trying to address, Tohono O'odham specifically
    said, their fourth casino would be in the Tucson area or in a
    rural area. They never once indicated that they would somehow
    go 100 miles up to the Phoenix area.
        But I will say the proposition that has the model compact
    that the voters actually saw when they voted to give the
    governor authority, there is a chart in there. And in the chart
    it shows the number of casinos that the tribes in Arizona were
    authorized to build under the old compacts, and the number of
    casinos that the tribes would be authorized to build under the
    new compact, the model compact that the voters were voting on.
        In the Phoenix area tribes, all are shown as giving up a
    right to an additional facility that they had under the old
    compact. Tohono O'odham, because they are not a Phoenix area
    tribe, kept the same number of casinos, the right to build the
    same number of casinos. So Gila River is shown as giving up an
    additional casino, right to an additional casino. Salt River
    gave up a right to an additional casino. Ak-Chin gave up a
    right to an additional casino. Fort McDowell gave up the right
    to an additional casino and so did Pascua Yaqui. Tohono O'odham
    didn't have to give up the right to an additional casino,
    because they weren't in the Phoenix area.
        So in our view, it is in the compact. Why else would these
    charts be in here showing that the Phoenix tribes gave up
    rights to additional casinos and Tohono O'odham didn't, if it
    wasn't intended that the whole goal of the compact was to limit
    the number of facilities in the Phoenix area?
        The Chairman. Okay. If you don't mind, Allison, I want to
    ask you another question, since you are an attorney, since you
    know the law. And I say this in the most friendly way. When I
    talked to Chairman Norris, and I think it was referenced in one
    of your testimonies, maybe it might have been Mr. Washburn's
    testimony, about breaking ground on a facility already. So
    ground has been broken.
        If we were to pass this bill, would there be a takings
    issue?
        Ms. Binney. No. And I thought it was interesting that
    Assistant Secretary Washburn didn't address this issue at all.
    Because he was aware of it. And Senator McCain asked him about
    it last time.
        The fundamental reason why is because this bill just
    provides a temporary restriction on gaming activities on
    certain lands. That is what IGRA does. The Indian Gaming
    Regulatory Act was passed to restrict gaming on tribal lands.
    So if this bill is a takings, then so is the Indian Gaming
    Regulatory Act. And that has been around 25 years and has been
    upheld again and again and again.
        The Chairman. So in one point, you are talking about policy
    that prevents gaming activities that happen with IGRA. This is
    an actual physical construction, you don't see that there is
    any difference there. And I ask this because I don't know.
        Ms. Binney. Yes, and we actually when it came up in the
    last hearing, Senator McCain asked it. We actually went and did
    a thorough analysis. Because I will say, last Congress there
    were some legitimate concerns raised about Tohono O'odham and
    we addressed them in this new bill. But we looked at it, and
    the other reason why it is not a takings is because Congress
    does these types of bills fairly frequently, actually,
    restricting gaming on lands. And they can build a resort. They
    can build a new sports stadium. They can do economic
    activities.
        The Chairman. That is fine, thank you. Thanks, Allison.
        Chairman Norris, a similar question to what I just asked
    Governor Mendoza. You have gaming facilities, can you discuss
    what benefits you have gotten from these gaming facilities and,
    while you are in that vein, could you also discuss unmet needs
    that are still out there by your tribe?
        Mr. Norris. Mr. Chairman, I too am not an attorney. I am
    the elected chairman of my nation, and I have an obligation to
    speak for my people.
        The Chairman. Yes.
        Mr. Norris. So I will do so. There are still third world
    conditions that exist in my tribal community, and many tribal
    communities nationwide. The Nation has had an enormous amount
    of benefit in comparison to where we were prior to gaming. We
    have been able to construct different facilities that were only
    dream facilities that we were needing within our communities,
    to be able to provide the necessary services. We have been able
    to create a government of employees that are able to provide
    the necessary services that many of our Nation's members
    require. We have been able to provide scholarships to our
    members.
        Prior to gaming, we had probably less than 300 members of
    our Nation that acquired bachelor's, associate's, master's and
    doctorate degrees and some law degrees. Today we have graduated
    more Tohono O'odham with those types of degrees, this many
    years later. My council continues to allocate some $5 million
    toward scholarship programs for our Nation.
        So we have had an enormous amount of benefit from the
    results of gaming. But we still have those third world
    conditions that continue to exist.
        As far as unmet needs, Mr. Chairman, we know today that we
    have 500 families that are homeless on the Nation. We know
    today that there are many people within our communities that do
    need housing. We know today that much of the roads that are
    within our tribal communities that are being used and mis-used
    by the U.S. Border Patrol because of the influx of border
    agents on our Nation, really do a wear and tear on our roads.
    And they are primarily BIA-IRR roads. So there is a need for us
    to work hand in hand with the Department of Interior, Bureau of
    Indian Affairs, to try and address the roads conditions that
    are so needing to be addressed, to be able to deliver the
    services, to be able to enter and exit our tribal communities
    nationwide.
        We have a reservation that is 2.8 million acres square in
    size. We have some 80 villages within that geographical area.
    The reservation is vast. The villages are remote. We have homes
    that do not have running water. We have homes that do not have
    electricity. So there is a serious amount of unmet need in my
    tribal community.
        The Chairman. Thank you, Chairman.
        Mayor Weiers, you are a former State legislator, you worked
    in city government as mayor, and I think you understand the
    actual text of the laws and contracts and the weight that that
    carries with those contracts and that text. In this case, there
    was a specific limitation, correct me if I am wrong, on Tohono
    O'odham developments around Tucson but not Phoenix. With that
    said, if this limitation on gaming in the Phoenix area was
    important, why was it not included in the current contract or
    Prop 202?
        Mr. Weiers. Chairman Tester, all I can tell you is the
    knowledge that I have of talking with one of the authors,
    Senator McCain. He had told me point blank that there was never
    ever any intention in their mind that this would ever be an
    issue. And I don't believe, quite honestly, that the average
    person, the non-attorney people, would ever have thought
    something like this. I guess that is why we have attorneys, to
    sit around and think of ways to get around stuff.
        But I don't believe anybody ever believed that this was
    ever going to be an issue. And it is an issue, and quite
    honestly, all this bill is trying to do is just, let's do what
    everybody said and thought we were going to do, and then when
    that compact is over, we will renegotiate. Chances are that we
    will probably end up with more casinos in the valley, almost
    certainly.
        The Chairman. Okay, thanks, Mayor.
        Councilman Sherwood, your testimony discusses the impacts
    that the agreement with the Tohono O'odham would have on the
    city of Glendale, positive impacts. Could you talk about those
    benefits of this development? And while you are on that, if
    there is a down side that comes to mind, could you talk about
    that, too?
        Mr. Sherwood. Thank you, Chair. Right off the bat, I can't
    see of any down side in the negotiations and the settlement
    agreement that we concluded with the Tohono O'odham in August.
    They are covering existing infrastructure, new infrastructure,
    water. It is not costing the city a penny. How often do you get
    a development where you don't have to give in to anything?
        In terms of the development, we were hurt pretty hard with
    the downturn with our sports and entertainment. There were
    eight funded projects that were to occur south of the
    University of Phoenix stadium where the Arizona Cardinals play.
    One of them was Mr. Bidwell's CB101 project, before he started
    building. Those either went into litigation afterwards or the
    developers pulled back. Those are slowly coming back, but not
    near the pace that was expected.
        So our sports and entertainment area, which has two
    professional sports teams, a large entertainment area along
    with some retail, was hurt vastly by that. So when we have the
    mega events, like when we have the Super Bowl next February, we
    don't have anything to keep people in the area, so they go off
    into Scottsdale and Phoenix.
        A project like this resort will entice other development.
    In fact, within weeks of us signing that agreement, we had two
    major developers, one that had done a large scale project in
    Phoenix, come through and they were only interested in us now
    because of this project. They were looking at land within the
    city of Glendale to develop that would be real close to the
    sports and entertainment area.
        So yes, we are looking at a lot of development activity
    that will directly benefit our city coffers. And then again in
    the deal that was referenced earlier about the $26 million or
    so that we get directly into the general fund from the Tohono
    O'odham. In fact, we have already received a check for
    $500,000, 10 days after the agreement was signed. That helps a
    city that has struggled, as has been widely reported, because
    of our past deals with some of the sporting facilities that we
    have. It has sorely helped our community.
        The Chairman. Okay. You talked about jobs. How many jobs?
        Mr. Sherwood. Jobs, in terms of the operations, you are
    going to see 3,000 jobs, 1,500 of them probably indirect, 1,500
    direct in terms of construction jobs. Right now it is scheduled
    for three phases, the casino and then the attached resort and
    probably a year later, another resort, based on how things are
    moving along. So you are talking thousands of construction jobs
    over this project that is going to take place over the next
    four years. But in terms of actual jobs at the West Valley, I
    would say about 3,000.

        The Chairman. Once again, I want to thank all of you for
    making the trek to Washington, D.C. I know it is not easy and
    some of you have made it twice. I thank you for that. And I
    mean that. This is obviously an emotional issue and it is an
    important issue.
        Note that the hearing will remain open for two weeks, and I
    encourage all stakeholders to submit written statements for the
    record. I want to say that again, this hearing record will
    remain open for two weeks. And if you are a stakeholder in this
    issue, I would encourage you to write written statements for
    the record.
        With that, once again, thank you all. This hearing is
    adjourned.
        [Whereupon, at 3:22 p.m., the hearing was adjourned.]
                                A P P E N D I X

        Prepared Statement of Hon. John Insalaco, Mayor, City of Apache
                               Junction, Arizona
        Chairman Tester, Vice Chairman Barrasso, Members of the Committee,
    thank you for the opportunity to submit my testimony on S. 2670, the
    Keep the Promise Act. My name is John Insalaco and I am the mayor of
    the City of Apache Junction, Arizona, which is in the Phoenix
    metropolitan area.
        First and foremost I want to thank our Senators, Senators McCain
    and Flake, for hearing our concerns and introducing this bill. And I
    thank you, Mr. Chairman and members of this Committee, for acting
    promptly to further examine this issue.
        While I have my own personal reasons for supporting this
    legislation, other Phoenix area mayors and I are unified in a singular
    concern: until Congress affirmatively acts on this legislation, the
    Tohono O'odham Nation (TON) could open a casino near any of our cities
    within any of the more than 200 county islands within Pima, Pinal and
    Maricopa Counties.
        Just like in Glendale, this could happen without our consent,
    without our input, and even without our knowledge. Without
    Congressional action, a single Washington, DC bureaucrat's decision
    threatens to change our communities forever and our local governments
    have lost control in fending off the unwanted proliferation of gaming
    in our neighborhoods. That outcome is wholly unacceptable to our
    constituents, which is why we collectively ask that this committee
    quickly approve this important bill.
        We represent communities that support tribal governments and the
    sovereign rights of our Nation's first peoples. While we may not see
    eye to eye on all issues, we have a strong track record of
    collaborative efforts that have fostered successful Government-to-
    Government relationships. Much of this collaboration is a direct result
    of the current compacts that promotes tribal governments and local
    governments to work together to address common issues. We appreciate
    and value the relationships we have developed with our neighbors, and
    believe this sentiment is reciprocated by many of the tribal
    governments throughout Arizona.
        That's why we were so surprised to learn of TON's actions. We could
    not believe that a government would surreptitiously acquire land for a
    new Phoenix area casino even while promising Arizona voters that there
    would be no new casinos in the region.
        Unfortunately the deception did not stop in Glendale. According to
    TON's attorneys, the tribe has the right to open even more casinos in
    the Phoenix metropolitan area.
        Like Glendale, many of the 200 county islands in Pima, Pinal and
    Maricopa counties are unfit for the development of major gambling
    establishments. These parcels are in and around large residential
    neighborhoods, near schools, and near religious institutions. In other
    words, the county islands are in precisely the type of neighborhoods
    that Phoenix and Arizona voters decided were not suited for further
    casino development.
        The development of new casinos in the Phoenix metropolitan area--
    whether in Glendale or in any of the other county islands in the
    metropolitan area--represents a fatal breach of trust between the
    tribal governments who advocated for Arizona Proposition 202 and the
    people of our state. When we heard the promise of ``no new casinos in
    the Phoenix area,'' we trusted our friends and neighbors and took them
    at their word. And in exchange for that promise, the voters of our
    state awarded these tribes with the exclusive right to run casinos in
    Arizona.
        Now the actions of one tribe have put this trust, and our
    longstanding working relationship with Arizona's tribal nations, in
    jeopardy.
        TON's decision to knowingly and willingly deceive voters forces us
    and many of our constituents to rethink the promises that we have made
    to tribes as well. While we do not have the authority to nullify the
    compact, the Proposition 202 compact expires in 2027; and we now have
    to think long and hard about whether we should renew that agreement. It
    would be a shame if the cavalier actions of one tribe upended a
    successful system that has benefitted all tribes in our state.
        Even more troubling was the recent testimony of Assistant-Secretary
    of Indian Affairs (AS-IA), Kevin Washburn, who clearly advocated on
    behalf of TON without making any mention of, or demonstrating any
    consideration for, the impact that the TON's potential casino would
    have on the Tribal-State compact and our communities.
        This Washington, D.C. bureaucrat presumed to know more about the
    voters' intentions than the voters themselves by claiming that the
    Phoenix gaming market could afford to have more casinos, even though
    voters clearly wanted a cap on the number of casinos in the area when
    they approved Proposition 202. AS-IA Washburn casually dismissed voters
    expectations by stating that the parties ``eliminated reliance on any
    statements or promises made during negotiations, unless they were
    included within the four corners of the compact,'' while ignoring that
    all urban area tribes except for TON gave up rights to additional
    casinos to meet State and voter expectations and TON retained one
    additional casino by assuring State and tribal negotiating parties that
    it would be located in the Tucson area or in rural parts of its
    reservation.
        AS-IA Washburn did not discuss or consider any of the fraudulent
    actions and promises that the TON made to State negotiating parties,
    the general public and other tribes during the compact negotiations and
    the tribes' campaign to convince voters to approve Proposition 202,
    when all the while it never intended to live up to these promises.
    Further, how AS-IA Washburn chose to interpret the Gila Bend Indian
    Reservation Lands Replacement Act has very direct consequences on our
    constituents and other Arizona tribes, but his testimony showed no
    impartiality or concern for non-TON interests, including the interests
    of other Arizona tribes. AS-IA Washburn refuses to act as an impartial
    and responsible agency decision-maker, instead leveraging his official
    position to serve as TON's personal advocate and the lives of our
    communities are now threatened by this agency action.
        Despite years of trying to convince TON to act responsibly and
    attempting to reason with the Administration, it has become clear that
    Congressional action is now Arizona citizens' only recourse to preserve
    our balanced and mutually beneficial system. And the legislation under
    consideration today does just that.
        S. 2670, the Keep the Promises Act, is a narrowly tailored bill
    that preserves the agreement that was made with voters in 2002 by
    simply prohibiting new casinos from being constructed in the Phoenix
    area until 2027, when the current compact expires.
        Equally as important is what the bill does not do. The Keep the
    Promises Act does not prohibit TON from taking land into trust. It does
    not impact the tribe's right to acquire land under the Gila Bend Act.
    And it does not prohibit the tribe from conducting gaming on newly
    acquired land after 2027. AS-IA Washburn falsely and passive
    aggressively accused the ``promise'' of S. 2670 as being illusory.
        In our eyes, this legislation is far from perfect because we would
    prefer that Indian reservations not be dropped within or city limits.
    But we believe the bill makes adequate concessions, while preserving
    the rights and agreements made by our constituents.
        We hope you too will see this as a fair, moderate piece of
    legislation, and ask that you move to quickly enact the bill.
        Thank you for the opportunity to submit our testimony today, and we
    look forward to working with you to ensure the bill is enacted during
    the 113th Congress.
                                     ______

     Prepared Statement of Hon. Adolfo F. Gaamez, Mayor, City of Tolleson,
                                    Arizona
        As the mayor of the City of Tolleson, Arizona, a community within
    close proximity to the Tohono O'odham Nation's West Valley Resort, I
    offer my adamant opposition to the S. 2670. My City was the first to
    unanimously pass a resolution in favor of the Nation's casino project.
    We have since been joined by the Cities of Glendale, Peoria, and
    Surprise.
        There is tremendous support for this project among my constituents
    as well as throughout the West Valley. The Nation's West Valley Resort
    represents a unique amenity for our region that will attract new
    visitors, new businesses, and create thousands of jobs--not just at the
    casino but across the West Valley.
        The proposed legislation, S. 2670, seeks to stymie major economic
    development thereby denying my constituents access to the greater
    prosperity. I urge you not to allow this harmful bill to go forward.
        As more than a dozen legal rulings have found, the Nation's project
    complies with all of the relevant federal laws and state compact, which
    is why the special interests opposed to this project have pushed this
    legislation, to make up for their defeats in court by rewriting the law
    in their favor. The arguments presented to the Committee by the
    Nation's opponents during the S. 2670 hearing have all been addressed
    and rejected throughout judicial proceedings that span over five years.
        The opposition continues to repeat these claims, but that doesn't
    make them any more accurate. The real intent of S. 2670 is to protect a
    few East Valley special interests at the expense of the West Valley's
    economic development.
        I trust that you and the Indian Affairs Committee will make the
    right decision, based on all the facts. Thank you for your time and
    consideration.
                                     ______

      Prepared Statement of Hon. Linda Kavanagh, Mayor, Town of Fountain
                                 Hills, Arizona
        Chairman Tester, Vice Chairman Barrasso, Members of the Committee,
    thank you for the opportunity to submit our testimony on S. 2670, the
    Keep the Promise Act. My name is Linda Kavanagh and I am the Mayor of
    the Town of Fountain Hills, Arizona.
        Like other elected leaders of the Phoenix metropolitan area, I am
    very concerned that the Tohono O'odham Nation (TON) could unilaterally
    open a casino on a county island located within our city limits.
        The county islands located near my community are precisely the type
    of neighborhoods that Phoenix and Arizona voters decided were not
    suited for further casino development. Without Congressional action, a
    rich gaming tribe and a single Washington, D.C. bureaucrat threaten to
    change our communities forever and strip us of our powers as local
    governments to fend off unwanted proliferation of gaming in our
    neighborhoods. Because that outcome is wholly unacceptable to our
    constituents, we collectively ask that this committee quickly approve
    the Keep the Promise Act.
        Further, in approving tribal gaming in and upholding Arizona
    tribes' right to have casinos in 2002 voters were promised that there
    were would not be any new casinos in the Phoenix area. All tribes
    except one have kept that promise. After TON's long kept secret came to
    light, we could not believe that a tribal government would secretly
    look for land for a new Phoenix area casino even while promising
    Arizona voters that there would be no new casinos in the region.
    Unfortunately this deception may not stop in Glendale. According to
    TON's attorneys, the tribe has the right to open even more casinos in
    the Phoenix metropolitan area. Now we must wonder if the tribe will
    purchase or has already purchased land in our communities. It is
    because of the actions of one tribe that our longstanding working
    relationship with Arizona's tribal nations is now in jeopardy.
        When we heard the promise of ``no new casinos in the Phoenix
    area,'' the voters of our state awarded tribes with the exclusive right
    to run casinos in Arizona. The current gaming compact will expire in
    2027 and because of one tribe's broken promise voters will have to
    think long and hard about whether we should renew tribal gaming, or
    whether to only allow tribes to operate casinos. In 2027, if not
    sooner, the central question to voters may be whether tribes should
    retain their exclusive right when one tribe cannot be trusted.
        Our concern for the future of Indian gaming in Arizona grew
    considerably after hearing the September 17 testimony of Assistant-
    Secretary of Indian Affairs, Kevin Washburn. Mr. Washburn clearly
    advocated on behalf of TON without making any mention of how TON's
    casino threatens Arizona, including other Arizona tribes. Mr. Washburn
    seems to be in the business of rubber stamping Indian casinos, which
    will only encourages tribes to adopt a cynical approach to expand
    gaming in our state.
        Additionally, Mr. Washburn ignored discussion of the fraudulent
    actions and promises that the TON made to State negotiating parties,
    the general public and other tribes during the compact negotiations.
    Evidence of their fraudulent conduct was the tribes' campaign to
    convince voters to approve Proposition 202 on the heavily advertised
    premise of ``no new casinos in Phoenix'' when all the while it planned
    to purchase land in Glendale for the purpose of opening a casino.
        It is clear that Mr. Washburn has chosen a way to interpret the
    Gila Bend Indian Reservation Lands Replacement Act that has very direct
    consequences on our constituents and other Arizona tribes. His
    testimony shows that he has no impartiality or concern for non-TON
    interests, including the interests of Arizona residents and its tribes.
        Despite years of trying to convince TON to act responsibly and
    attempting to reason with the Administration, it has become clear that
    Congressional action is now Arizona citizens' only recourse to preserve
    our balanced and mutually beneficial system. S. 2670, the Keep the
    Promises Act, is a narrowly tailored bill that preserves the agreement
    that was made with voters in 2002 by simply prohibiting new casinos
    from being constructed in the Phoenix area until 2027, when the current
    compact expires. Equally as important is what the bill does not do. The
    Keep the Promises Act does not prohibit TON from taking land into
    trust. It does not impact the tribe's right to acquire land under the
    Gila Bend Act. And it does not prohibit the tribe from conducting
    gaming on newly acquired land after 2027.
        Although this legislation does not address the long term problem of
    off-reservation gaming in Arizona, it does ensure that tribes live up
    to the commitments and assurances they gave to voters during their
    campaign to get the exclusive right to have casinos in Arizona. We hope
    you will see this as a fair, moderate piece of legislation, and ask
    that you move to quickly enact the bill.
        Thank you for taking my testimony.
                                     ______

      Prepared Statement of Hon. Thomas Beauty, Chairman, Yavapai-Apache
                                     Nation

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       Prepared Statement of Sherry J. Counts, Chairwoman, Hualapai Tribe
        I am Sherry Counts, Chairwoman of the Hualapai Tribe. On behalf of
    the Hualapai Tribe, I believe it is imperative to present this
    testimony to the Senate Committee on Indian Affairs following the
    Committee's September 17, 2014 hearing on S. 2670, ``Keep the Promise
    Act'' as introduced by Senators McCain and Flake. This issue is one
    that has the Hualapai people very concerned. It is often said that
    there is more than one side to every story. The Committee has only
    heard part of the story and before acting; the Hualapai would like the
    Committee to consider other aspects of what S. 2670 means to my people
    and why we ask Congress to pass this legislation. I thank the Senate
    Committee on Indian Affairs for the opportunity.
        The Hualapai Tribe is a federally recognized tribe located in rural
    northwestern Arizona. Our land runs along the Grand Canyon and the
    Colorado River between Kingman and Seligman, Arizona on historic Route
    66, very scenic territory. We have about 2,300 members with about 1,300
    residing within our reservation. Now we rely on tourism, ranching and
    arts and crafts to drive our local economy. Our closest ``city'' is
    Kingman, Arizona, located about 50 miles to the west of our primary
    community of Peach Springs, Arizona. This is where people go to
    purchase groceries, gas, and clothing. Many of our youth travel the 50
    miles to Kingman, one way and each school day, to attend high school.
        We do not operate a casino. Many years back, we did make an attempt
    to open a small gaming facility, but we were not successful. Our
    facility was forced to closed a very short time after we opened. In
    retrospect, our remote location as well as our proximity to the large
    Las Vegas gaming establishments make the operation of a successful
    gaming operation in our remote community unviable. However, the
    Hualapai Tribe has a fully executed gaming compact with the state of
    Arizona. We participate in gaming and receive gaming revenue through
    our Transfer Agreements. Gaming revenue provides the Hualapai Tribe
    with additional resources to pay for basic subsistence needs for our
    members. As a result, this issue is of critical importance to us. Our
    story presents another facet of the dispute relating to the Tohono
    O'odham Nation's proposed West Valley Resort. Our story is one that is
    often overlooked and perhaps misunderstood. Our story presents real
    facts and considerations of the potential impacts the proposed facility
    has on one tribe in rural Northwestern Arizona. As a result, we believe
    it is necessary, as a Tribe that potentially faces perhaps the biggest
    of repercussions if the West Valley Resort is opened, to provide our
    position and response on S. 2670 as well as to address some of the
    issues and arguments raised during the Committee's hearing on September
    17, 2014.
    Arizona Gaming--Delicately Balanced and Intentionally Limited by Design
        Although the Hualapai Tribe does not operate a casino, we have a
    fully executed Tribal-State Gaming Compact with the state of Arizona.
    Our former Chairwoman, Louise Benson participated in the negotiations
    and discussions over the design of gaming in 1999 that ultimately ended
    up on the Arizona ballots as Proposition 202 in the election of 2002.
    The compacts included in Proposition 202 were the result of over two
    years of negotiations and are delicately balanced and intentionally
    limited gaming that benefits all tribes with at Tribal-State Gaming
    Compact as well as the citizens of Arizona. The balance has worked for
    many years and is often cited as the Indian gaming standard.
        Gaming in Arizona, by design is limited in size, scope and growth.
    These carefully engineered limits were discussed multiple times among
    the tribes, including the Tohono O'odham Nation and with the Governor's
    Office. Gaming in Arizona is limited as to the number of facilities,
    number of machines per tribe and per facility, limited as to the types
    of games, and limited with regard to wager amounts. Plans for
    responsible growth are also tied to changes in population so that
    growth would be responsible growth and the markets would not be
    saturated. To get to this point, every tribe had to be willing to give
    and make sacrifices for the benefit of all tribes. The Hualapai Tribe
    sacrificed its facility allocations in order to transfer machines to
    tribes in the metro areas so that we could benefit from gaming. We did
    this, not knowing whether there would be a change in circumstances for
    us that would, at some point, make operation of a facility for us a
    viable option. We all understood the balance was necessary for all
    tribes with Tribal-State Gaming Compacts could benefit from gaming.
    Now, the Tohono O'odham's plans threaten to upset this balance.
        In addition to specifically designed limits, there was a plan so
    that each of the tribes with Tribal-State Gaming Compacts could benefit
    from gaming, from the tribes located in high density urban locations,
    such as the Tohono O'odham Nation's land in the Tucson metropolitan
    area to the most rural of tribes, like the Hualapai Tribe. To this end,
    Arizona tribes are classified into three categories: The Metro Gaming
    Tribes, those tribes located near Phoenix and Tucson, the Rural Gaming
    Tribes, or tribes located near areas with a population to support a
    gaming facility such as those located in Globe, Yuma, Camp Verde,
    Payson, and Show Low. Finally, there are the Non-Gaming Tribes also
    called the Transferring Tribes, which include those tribes with tribal
    lands in remote areas and without the ability or population to operate
    a casino. The Hualapai Tribe is a Non-Gaming Tribe. As a Non-Gaming
    Tribe we lease our machine allocations to other tribes in the metro
    areas through contractual agreements we refer to as Transfer
    Agreements. As a result of our Transfer Agreements, we participate in
    gaming and receive much needed revenue. We are able to use a resource
    we have by virtue of our Tribal-State Gaming Compacts to benefit
    financially. The believe the viability of our Transfer Agreements is
    potentially at risk due to Tohono O'odham Nation's plans. Most Transfer
    Agreements contain provisions that automatically terminate the Transfer
    Agreements if the ``Poison Pill'' provisions of the Tribal-State Gaming
    Compacts are triggered, thus removing all limits on gaming and thus
    eliminating the need for the Metro Tribes to lease machines from Non-
    Gaming Tribes. Some Transfer Agreements also include early buy-out
    provisions for the Metro Tribes to exercise if they need to terminate a
    Transfer Agreement early. Obviously, an additional casino in the
    Phoenix market will result in changes in market conditions that places
    the Transfer Agreements at risk because the new facility may lead to
    the Arizona legislature legalizing commercialized non-Indian gaming,
    which will definitely trigger the Poison Pill or changes market
    conditions so that the Metro Tribes exercise the early termination
    provisions of the Transfer Agreements. Either way, my Tribe, the
    Hualapai Tribe bears the biggest burden of the outcome of this dispute.
    We will be eliminated from the gaming industry and will lose much
    needed revenue. The Tohono O'odham Nation's proposed West Valley Resort
    has the potential to effectively change the face of gaming in Arizona
    and tribes like mine, stand to lose the most.
    Deception Then or Deception Now--Deception is Deception
        In late 1999, before entering the negotiation process an Agreement
    in Principle was developed for the Tribal Leaders to sign as evidence
    of the commitment to work together in good faith. This document
    included language that specified that in the event an individual tribal
    interest superseded the common goal, there would be full disclosure. On
    January 7, 2000, Edward Manual, Chairman of the Tohono O'odham Nation.
    In addition to the Tohono O'odham Nation's pledge through its tribal
    leader on January 7, 2000, the Tohono O'odham Nation actively
    participated in negotiations and later in the campaign to get gaming
    authorized by Arizona's voters. During this process, the clear
    understanding and expectation and understanding of all participating
    tribes was expressed multiple times, either in testimony to the state
    legislature or in campaign materials urging support for Proposition
    202, the initiative that authorized Indian gaming in Arizona. The same
    understanding expectation was also expressed and communicated by the
    Governor's Office and the Secretary of State through various press
    releases and in materials circulated to the voters. More specifically,
    on April 8, 2002, David LaSart, AIGA Executive Director testified
    before the Arizona Legislative Committee that Proposition 202 compacts,
    ``include the limitation of facilities in the Phoenix-metro area to the
    current number [7] and allows the possibility for only one additional
    facility in Tucson.'' In the voter information pamphlet developed and
    circulated by the 17-Tribe Indian Self-Reliance Initiative to support
    Proposition 202, the voters were advised, ``[u]nder Prop 202, there
    will be no additional facilities authorized in Phoenix, and only one
    additional facility permitted in Tucson.'' The Tohono O'odham Nation
    was one of the 17 tribes that provided funding to support Proposition
    202 and that was used to pay for this voter information pamphlet. In
    Governor Hull's February 20, 2002 Press Release, she advised the
    residents of Arizona, the agreement reduced the number of gaming
    facilities in Arizona by 25 percent and that there would be ``no
    additional casinos in the Phoenix metropolitan area and one additional
    casino in the Tucson area.'' The Secretary of State's Voter Guide for
    the November 5, 2002 election contains consistent information about
    Proposition 202 stating, ``Voting `yes' on Proposition 202 ensures that
    no new casinos will be built in the Phoenix metropolitan area and only
    one in the Tucson area for at least 23 years.'' Despite all of Tohono
    O'odham Nation's active participation in the campaign process, the
    Tohono O'odham Nation is now saying there was never a promise to limit
    the number of machines in the Phoenix metro area. Their actions beg a
    few relevant questions. First, if there was never a clear understanding
    and agreement that there would be no additional casinos in the Phoenix
    metro area, why didn't the Tohono O'odham speak up during the campaign
    to advise all parties that they did not agree to the campaign promise
    that the negotiated agreement meant that there would be no new casinos
    in the Phoenix metro area? This statement was not a one-time statement;
    it was one that was made repeatedly on many different occasions by many
    different people, both verbally and in writing. How is it that everyone
    from the Governor to the Secretary of State to the other Tribal Leaders
    understood that the agreement that would be passed by Proposition 202
    meant there would be no new casinos in the Phoenix metro area but
    Tohono O'odham did not?
        Now, to support their new position, in written testimony submitted
    to the Committee, the Tohono O'odham refer to various 2012 depositions
    to support their position that there was never a promise of ``no new
    casino in Phoenix''. They include excerpts from depositions of W.M.
    Smith, Clapham, Ochoa, Severns, Lewis and LaSarte. See Written
    Testimony of the Honorable Ned Norris, Jr., Senate Indian Affairs
    Committee Legislative Hearing on S. 2670, Keep the Promise Act of 2014,
    September 17, 2014. However each of these individuals state, they do
    not recall any specific promise. (Emphasis added). Basic statement
    analysis of ``I do not recall'' suggests the individual had the
    information at one time but simply does not remember it at the present
    time. Thus, the deposition excerpts only mean that at the time the
    deposition was taken, the witnesses merely did not remember. It does
    not mean the promise of ``No New Casinos in Phoenix'' was not made.
    Multiple written documents, including the campaign materials, the
    Governor's February 20, 2002 Press Release as well as the Secretary of
    State's Voter Information Guide from the November 2002 Election written
    contemporaneously to the event, quite clearly evidence the promise.
        Either the Tohono O'odham intentionally chose not to correct the
    record and allowed misleading information to be provided to the voters
    in hopes their plans would not be discovered or they subsequently
    changed their position and now denying that they agreed with the
    numerous statements made during the Proposition 202 campaign.
    City of Glendale
        The Tohono O'odham Nation then presents the City of Glendale as
    supportive of their West Valley Resort. However, it wasn't until the
    City of Glendale found itself in financial turmoil that Glendale
    changed its position on the West Valley Resort. Glendale's motivation
    is purely financial and it can be argued that the Tohono O'odham Nation
    bought their support. In various news articles, Councilman Gary
    Sherwood, who testified before the Committee about the benefits of the
    proposed West Valley Resort and elaborating what a great partnership
    the parties will enjoy, is quoted as saying ``We're hunting for
    money.'' Proposed West Valley Casino is Pitting Valley Indian Tribes
    Against One Another, Monica Alonzo, Phoenix New Times, February 6,
    2014. Councilwoman Norma Alvarez has stated, ``we're so broke.''
    Glendale City Council Begins Formal Casino Negotiations with Tohono
    O'odham Nation, Monica Alonzo, Phoenix New Times, March 20, 2014.
    Following the decision to begin formal negotiations with the Tohono
    O'odham Nation, the City of Glendale applied for almost $800,000 in
    grants from the Tohono O'odham Nation. After years of opposing the
    Tohono O'odham Nation's proposed West Valley Resort, ``Glendale decided
    to try and reach into the tribe's pocket.'' Glendale Applies for Nearly
    $800k in Grants from Longtime Nemesis Tohono O'odham Nation, Monica
    Alonzo, Phoenix New Times, June 16, 2014. Then in August 2014, the City
    of Glendale and the Tohono O'odham Nation entered an agreement wherein
    the Tohono O'odham Nation agreed to provide the City of Glendale at
    least $26 million over a 20-year period. The agreement required the
    Tohono O'odham Nation to make an initial payment of $500,000 to the
    City of Glendale within 10 days of the agreement and annual payments of
    $1.4 million beginning 6 months after gaming begins. Glendale Council
    Oks Casino Deal with Tribe, www.azcentral.com, August 13, 2014.
    According to the written testimony of Councilman Gary Sherwood, the
    City of Glendale has already received a ``good faith payment'' of
    $500,000. See Written Testimony of Gary Sherwood, Councilman, City of
    Glendale, Arizona to the Senate Committee on Indian Affairs, S. 2670,
    September 17, 2014. To be direct, it is obvious that the support of the
    City of Glendale was purchased. However, based upon the Tohono O'odham
    Nation's history, the City of Glendale should be concerned about what
    could happen to their partnership with the Tohono O'odham Nation should
    the ``poison pill'' provisions of the Tribal-State Gaming compact be
    triggered or if the Tohono O'odham Nation changes its mind and denies
    that they ever agreed to a partnership with the City of Glendale as
    they have with the other tribes.
    Bureau of Indian Affairs Opposition to S. 2670 Filled with
            Misinformation
        We listened in shock and despair to the comments provided to the
    Committee by Assistant Secretary Washburn. Assistant Secretary Washburn
    works for the Bureau of Indian Affairs, an agency with a mission to
    ``enhance the qualify of life, to promote economic opportunity, and to
    carry out the responsibility to protect and improve the trust assets of
    American Indians, Indian tribes, and Alaska Natives.'' See
    www.indianaffairs.gov/WhoWeAre. Yet, Assistant Secretary Washburn was
    advocating for one Arizona tribe over the other tribes, including the
    Hualapai Tribe and his testimony was completely inappropriate. As an
    agent of the Bureau of Indian Affairs, the Assistant Secretary is
    supposed to support all tribes. During his testimony, he referred to
    the Tohono O'odham Nation as ``impoverished'' with significant unmet
    needs. The Hualapai Tribe, like most Arizona tribes, struggles with the
    same, if not more significant unmet needs. To be direct, a reference to
    unmet needs should not justify the Assistant Secretary's position in
    opposition of S. 2670. In fact, if Assistant Secretary Washburn were
    considering unmet needs, his consideration would have and should have
    considered the unmet needs of ALL of Arizona's tribes. In addition,
    Assistant Secretary Washburn made reference to the Phoenix market being
    in a position to support an additional casino. However, he failed to
    identify any source to support his testimony to the Committee that the
    Phoenix gaming market can support another casino. Assistant Secretary
    Washburn did not present any evidence that the market can withstand any
    additional machines. Those of us in the area who work with gaming at
    the local level are in the best position to determine whether there
    will be an impact on the market. The act of opposing an additional
    casino is evidence enough that the market is not sufficient in the
    Phoenix metropolitan area to support another casino. Even if, for the
    sake of argument, the Phoenix market could support another casino, the
    underlying issue addressed by S. 2670 remains. Because the Assistant
    Secretary's comments were so biased and presented without support, we
    urge the Committee to disregard his position.
    Possible Consequences--The Rest of the Story
        The Hualapai Tribe has used our gaming revenue to build
    infrastructure in our community and for the benefit of our members.
    We've constructed buildings such as the Health Building and the Boys
    and Girls Club, among others. Our gaming revenue assists tribal members
    in need of emergency food and shelter assistance, to pay medical care
    when Indian Health Service is insufficient, to provide wood for our
    elders during the harsh winter months. Several Hualapai members have
    received scholarships, funded by our gaming revenue and have used the
    funding to pursue higher education in hopes of creating a better future
    for our community. While we have other revenue sources, the loss of our
    gaming revenue would have negative impact that would not go unnoticed.
        There is much chatter and finger pointing about this issue being an
    issue of greed. We've witnessed storied painting the Tohono O'odham
    Nation as the victim and the Gila River Indian Community and the Salt
    River Pima-Maricopa Indian Community as the greedy villains wanting to
    eliminate the competition. Protecting market share is of course part of
    the issue, however there are bigger issues involved and at stake that a
    person unversed in the Arizona gaming industry may not understand or be
    aware. The Tohono O'odham Nation's plans place the Hualapai Tribe at
    risk for losing our gaming revenue. As mentioned previously, our Metro
    gaming partners may have motive to terminate our Transfer Agreements as
    a business decision. Further, our compacts do not continue
    indefinitely. At some point, the Arizona Tribes will need support to
    continue being the exclusive providers of gaming in Arizona. In 2002,
    the tribes made promises to the people of Arizona that no new casinos
    would be constructed in the Phoenix metropolitan area. Whether the
    Tohono O'odham Nation acknowledges they were an active participant in
    making those promises or not, the written evidence is out there. If the
    West Valley Resort is constructed it potentially endangers our ability
    to negotiate for additional compact terms both with the state of
    Arizona as well as with the voters. The Tohono O'odham Nation's plans
    make it extremely difficult for the Tribes to seek voter approval or
    even the support of the Governor for an extension of gaming beyond the
    current compacts.
        Each year, we closely monitor the Arizona legislative sessions to
    protect against the racetracks and commercial gaming interests who have
    made attempts to expand gaming off the reservation. In 2002, at the
    same time we were campaigning for the passage of Proposition 202, there
    was an attempt to expand gaming to Arizona's dog and horse tracks. Each
    time there is financial strain in Arizona, the concept is brought to
    the forefront. Part of our success at thwarting these attempts is due
    to the fact that Indian gaming in Arizona benefits all tribes with a
    State-Tribal Gaming Compact, including rural Non-Gaming Tribes and the
    fact that Arizona has enjoyed the positive benefits of well regulated
    and limited gaming. We've also capitalized on the inability to trust
    and rely upon promises made by commercial and racetrack gaming as
    demonstrated in other jurisdictions. If the West Valley Resort is
    constructed, the trust will be broken. Our ability to make promises
    people view as trustworthy and reliable is gone; thereby placing
    limited Indian gaming in Arizona on the path of extinction.
        Of further concern are statements made by attorneys for the Tohono
    O'odham Nation indicating their belief that they can repeat this
    process again; purchase land under the Gila Bend Reservation Land
    Settlement Act in the Phoenix metropolitan area, have the land placed
    into trust and open another facility, this time, perhaps in the East
    Valley of the Phoenix.
        The Hualapai Tribe, as a Non-Gaming Tribe stands to lose the most
    in this situation. The Metro Tribes will survive and adjust, however,
    the Hualapai Tribe stands to lose our gaming revenue: that is the
    bigger but untold story. As Chairwoman of the Hualapai Tribe, I cannot
    speak on behalf of the other Non-Gaming Tribes; however, I can share my
    concerns about the Tohono O'odham Nation's plans.
    S. 2670 Is Only a Time Out
        In painting themselves as a poor impoverished tribe, who happens to
    be able to pledge $26 million to the City of Glendale for their
    support, the Tohono O'odham claims S. 2670 takes something from them.
    That is simply untrue. S. 2670 simply hits a ``pause'' button on their
    plans. It allows those who approved Indian gaming in Arizona, the
    Arizona voters, to have a say in the process. This action is quite
    appropriate. If at the end of the compacts, the voters want another
    casino in the Phoenix metro area, then they can authorize one. However,
    a new casino shouldn't be forced upon the voters without their
    consideration of the full impacts, including the impact to other tribes
    like the Hualapai Tribe.
    Conclusion
        As the Chairperson of Hualapai Tribe, I urge you to push S. 2670
    forward. While I would have preferred the matter to be resolved among
    the tribes in Arizona, it is evident that we can no longer resolve this
    issue without Congressional intervention. Thank you.
                                     ______

       Prepared Statement of Robert Hart, Executive Vice President, Hunt
                               Construction Group

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

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                                        City of Peoria, Arizona
                                             September 29, 2014
    Hon. Jon Tester, Chairman,
    Hon. John Barrasso, Vice Chairman,
    Senate Committee on Indian Affairs,
    Hart Senate Office Building,
    Washington, DC.

    Dear Chairman Tester and Vice Chairman Barrasso,

        On behalf of the City of Peoria, Arizona I write to express
    opposition to S. 2670 the job-killing legislation that attempts to
    break a promise of economic development for my community and the Tohono
    O'odham Nation. Our unanimous City Council resolution opposing this
    legislation is a blatant attempt to preserve market share of Native
    American Tribes on the other side of the Phoenix Metropolitan region. *
    ---------------------------------------------------------------------------
        * The information referred to has been retained in the Committee
    files.
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        My Councilmembers and I have spent the past 5 plus years working
    with the Tohono O'odham Nation and were pleased to celebrate the
    groundbreaking of the West Valley Resort and casino in August. The
    development shares a border with the City of Peoria and we are thrilled
    to have the project underway because of the thousands of construction
    jobs and money that's already being spent in our community today
    because of the construction as well as the permanent jobs that will
    ultimately be created.
        I have personally taken vacation time from my employer and traveled
    to Washington D.C. to counter the misinformation and blatant lies being
    put forth by the East Valley Tribes and their supporters. The fact is
    that Arizona and, in particular, our West Valley region are growing.
    The majority of Greater Phoenix's growth will occur in Peoria and the
    West Valley so there is more than enough market share to go around.
        As local government leaders, I respectfully request that you
    consider our opposition to S. 2670. We are duly elected and have
    literally spent years talking with our constituents and the Tohono
    O'odham Nation. Those discussions have now yielded construction of the
    project and we oppose any effort that would eliminate these important
    jobs and set back our economic development.
            Sincerely,
                                                   Bob Barrett,
                                                                 Mayor.
                                     ______

                                  Resident of Glendale, Arizona
                                             September 26, 2014
    Hon. Jon Tester, Chairman,
    Hon. John Barrasso, Vice Chairman,
    Senate Committee on Indian Affairs,
    Hart Senate Office Building,
    Washington, DC.

    Dear Chairman Tester and Vice Chairman Barrasso, and all Honorable
    Senate Committee members of the Indian Affairs Committee

        I am asking the following informational research, facts, and
    opinion become part of the Testimony for S. 2670 which is currently
    before your Committee.
        I am a business partner with my husband in our own business as well
    as a Facilitator of the Grassroots Tea Party Activists in the Glendale,
    Phoenix area. I have been involved in the research of the West Valley
    Resort & Casino project since it's inception meeting with Tea Party
    members, citizens of Glendale, Phoenix, and surrounding cities,
    conducting poll research of various businesses here in the valley and
    have found the reception to be extremely favorable in support of the TO
    Nation and the West Valley Resort & Casino. I was originally active in
    attending Glendale city Council meetings in support of the TO Nation
    and continue to do so when I have the availability of Tuesday night
    Council Meetings.
        This support continues to be favorable in that the economic
    downturn across the Country, and in particular in the City of Glendale,
    Arizona is not good. There have been few new startups and a lot of
    store/restaurant closings in Glendale specifically. There were many
    homes up for sale in City of Glendale which has slowed down a little.
    The City of Glendale in a 5-4 decision voted and passed a Resolution in
    favor of the TO Nation. I'm sure if Council member Ian Hugh, Norma
    Alveraz, Gary Sherwood, and Sammy Chavira were contacted they would be
    more than happy to provide a copy to all Senate Members of the Indian
    Affairs Committee. Be it known that the Mayor was one of the `No' votes
    and as you will see down in the text of my email, Mr. Weiers received a
    good bit of financial support in his 2012 Mayor Candidacy from GRIC
    (Gila River Indian Community) Independent Expenditures. There has
    always been a lot of money given to the City of Glendale in the past
    including a brand new Fire Truck. Westgate City Center has about 4 very
    large electronic billboards in front of the Arena and in the Restaurant
    area all constantly flashing/promoting GRIC Casinos. There are even a
    few of the Restaurants in Westgate City Center that do off-track
    betting and Poker. The City of Glendale is no stranger to Off-Track
    Betting establishments as well as Poker establishments in the Bars
    within Glendale. There are at least 2 Strip Clubs, one to the east, and
    one to the west on Northern of the West Valley Resort & Casino project,
    one of these exceptionally close to the City of Glendale City Hall. For
    anyone to complain about a Casino being near a school, of which is not
    `close/near' the school, more like an approximate \1/2\-\3/4\ mile away
    to the south of the property where the Resort/Casino is being built, is
    an oxymoronic statement. When one can travel just a little further
    south down 99th Ave to Glendale Ave and go into Westgate City Center
    and go into any restaurant/bar located there and be in the vicinity of
    gambling, drinking establishments, etc. The Casino is nothing more than
    an enlarged entertainment center with restaurants, convention centers,
    and drinking establishments, nothing different than what is in Westgate
    City Center or down the road going into Glendale downtown district.
    Directly across the street from the Casino to the north is the city of
    Peoria and restaurants, small businesses, etc. and they have no problem
    with the Casino. In fact the City of Peoria has offered to provide
    Water to the location. Also in the Resolution passed by Glendale
    Council, TO Nation has graciously offered to provide quite a bit of
    money over the next few years and give the water usage to the City of
    Glendale.
        Also, to show just how the integrity of the Mayor is not, he has
    already, in my and others opinion, violated the City Ordinance/
    Agreement with the TO Nation by slamming them for a 2nd time at these
    hearings. He is going against the promise and agreement passed by City
    of Glendale Council with the TO Nation/West Valley Resort & Casino.
        To reiterate a statement made to me face to face by Senator John
    McCain at a Townhall meeting when I approached him after the meeting
    asking questions of why is it ok for the State of Arizona to support
    the building ad financing of a Navajo/Hopi Casino--Twin Arrows in
    Flagstaff with no problem, promote GRIC Casinos all over the place
    within Metro Phoenix, billboards, TV ads, and Radio Commercials with no
    problem, yet condemn another Tribe truing to do the right and legal way
    to use our American Free Enterprise system and create a beautiful
    Resort & Casino and Convention Center--Senator McCain's response to me
    was (he looked me straight in the eye) and responded to me `My dear,
    it's all about the money, It's Always about the money!' and laughed.
        Please continue to read what I sent on to Mr. Washburn and ensure
    that all of this becomes part of the Testimony allowed within the
    allotted timeframe on S. 2670 * which is now before your Committee of
    the 113th Congress (2013-2014): Keep the Promise Act of 2014. Comment:
    this so-called `Keep the Promise Act' initiated by GRIC is a sham, and
    a disgrace to all that is honest and free and all peoples and tribes
    wanting to participate in the United States Free Market and Free
    Enterprise System.
    ---------------------------------------------------------------------------
        * The information referred to has been retained in the Committee
    files.
    ---------------------------------------------------------------------------
        Thank you.
            Respectfully,
                                          Francie L. Romesburg,
                       Grassroots Tea Party Activist Facilitator/Leader
                                     ______

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                                     ______

        The Committee received 517 signatories from the City of Glendale,
    Arizona who oppose the Tohono O'odham Nation's proposed casino in the
    City of Glendale. The Committee also received 361 individuals letters
    from the Gila River Indian Community expressing their opposition to the
    Tohono O'odham Nation's proposed off-reservation casino in Glendale,
    Arizona and support for H.R. 1410. *The information referred to has
    been retained in the Committee files.*

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